UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF INDIANA 

FORT WAYNE DIVISION

GORSS MOTELS, INC., a Connecticut ) 

corporation, individually and as the ) 

representative of a class of similarly-situated ) 

persons, ) 

 ) 

 Plaintiffs, ) 

 ) 

 v. ) CASE NO.: 1:16-CV-330-HAB 

 ) 

BRIGADOON FITNESS INC., an Indiana ) 

corporation, BRIGADOON FINANCIAL, INC., ) 

an Indiana corporation, and John Does 1–5, ) 

 ) 

 Defendants. ) 

OPINION AND ORDER 

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. 
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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]. 

FACTUAL BACKGROUND 

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 
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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 Wyndhamapproved 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 
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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 Brigadoon’s Sage 500 accounting system, and 

fax numbers from individual hotel/motel representatives that had attended an industry 

trade convention and shared contact information with Brigadoon. 
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ANALYSIS 

Plaintiff requests that the following class be certified: 

All persons or entities who were successfully sent a Fax on April 17, 2013 stating, 

“ANY 2 CARDIO = FREE SANITATION STATION,” listing “Hotel Fitness A 

Brigadoon Fitness Company” as the vendor, and containing the phrase “Let Us 

Help You Design Your Fitness Room! 800.291.0403 Call today to talk to one or 

[sic] our trained experts.” 

“The class action is ‘an exception to the usual rule that litigation is conducted by and on 

behalf of the individual named parties only.’” Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 

348 (2011) (quoting Califano v. Yamasaki, 442 U.S. 682, 700–01 (1979)). To merit 

certification, a putative class must satisfy the four requirements of Rule 23(a)—

numerosity, commonality, typicality, and adequate representation—plus fit within one 

of the three types of classes listed in Rule 23(b). Rule 23(b)(3) classes—the kind at issue 

here—must meet predominance and superiority requirements, that is, “questions of law 

or fact common to class members [must] predominate over any questions affecting only 

individual members” and class treatment must be “superior to other available methods.” 

Fed. R. Civ. P. 23(b)(3). 

 “Predominance is a qualitative rather than a quantitative concept. It is not 

determined simply by counting noses: that is, determining whether there are more 

common issues or more individual issues, regardless of relative importance.” Parko v. 

Shell Oil Co., 739 F.3d 1083, 1085 (7th Cir. 2014). The proposed class must be “sufficiently 

cohesive to warrant adjudication by representation.” Amchem Prods., Inc. v. Windsor, 521 

U.S. 591, 623 (1997). “An individual question is one where members of a proposed class 

will need to present evidence that varies from member to member, while a common 
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question is one where the same evidence will suffice for each member to make a prima 

facie showing or the issue is susceptible to generalized, class-wide proof.” Tyson Foods, 

Inc. v. Bouaphakeo, 136 S. Ct. 1036, 1045 (2016) (internal quotation marks and brackets 

omitted). 

The TCPA only prohibits faxed advertisements that are “unsolicited,” and the 

TCPA defines an “unsolicited advertisement” as one sent without “prior express 

invitation or permission.” 47 U.S.C. § 227(a)(5). The issue of prior express invitation or 

permission is of critical importance in this litigation, and will predominate over other 

issues, such as whether the fax was an advertisement. Accordingly, the Court will not 

find that Rule 23(b)(3) predominance is satisfied unless the issue of prior express 

invitation or permission is a “common, aggregation-enabling” issue. Bouaphakeo, 136 S. 

Ct. at 1045. 

Whether a fax recipient expressly consented to receive fax advertisements must be 

assessed “on a case-by-case basis” and express permission requires “that the consumer 

understand that by providing a fax number, he or she is agreeing to receive faxed 

advertisements.” CE Design Ltd. v. King Architectural Metals, Inc., 637 F.3d 721, 726 (7th 

Cir. 2011) (internal quotation marks and emphasis omitted) (quoting In re Rules and 

Regulations Implementing the Tel. Consumer Prot. Act of 1991, 18 F.C.C.R. 14014, 14129 

(F.C.C. 2003), 2003 WL 21517853); see also Fober v. Mgmt. & Tech. Consultants, LLC, 886 F.3d 

789, 793 (9th Cir. 2018) (“When a recipient voluntarily provides a contact number, she 

provides express consent to receive material ‘relate[d] to the reason why [she] provided 

[her] . . . number in the first place.’”). The statute does not require a specific form of 
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invitation or permission. CE Design, 637 F.3d at 726; 42 U.S.C. § 227(a)(5) (stating that it 

can be “in writing or otherwise”). 

The Court finds, as it did previously, that questions of prior express invitation or 

permission are individual inquires that predominate over common issues. In so holding, 

the Court joins a growing number of courts that have declined to certify TCPA claims 

brought by hotel franchisees against product suppliers. For example, in Gorss Motels, Inc. 

v. Otis Elevator Co., the court found that the Rule 23(b) predominance analysis was 

dispositive and precluded certification of a class of Wyndham franchisees who received 

a promotional “Fax Blast.” No. 3:16-CV-1781 (KAD), 2019 WL 1490102 (D. Conn. Apr. 4, 

2019). The court reasoned: 

While some of the evidence might constitute generalized proof that is 

equally applicable to each class member, the relationship, whether 

contractual or otherwise, between and among each recipient — i.e., 

Wyndham, WSSI, Otis, and perhaps others — will need to be assessed on 

an individualized basis. Indeed, the Defendant has identified many 

putative class members with whom it had a pre-existing relationship. The 

nature of any such relationship is directly probative on the issue of consent. 

And an individualized inquiry into any prior communications, to include 

their frequency, nature or content, between the class members and the 

Defendant would likewise be required. Consent is, after all, something 

communicated from one party to another. In sum, it is clear to this Court 

that the individualized inquiry that would need to be undertaken by the 

Court is precisely the type of inquiry that makes this putative class 

unsuitable for certification. 

Otis Elevator, 2019 WL 1490102, at *5 (D. Conn. Apr. 4, 2019). 

Similarly, in Gorss Motels Inc. v. A.V.M. Enterprises, Inc., No. 3:17-CV-01078 (KAD), 

2019 WL 4278951, at *4 (D. Conn. Sept. 10, 2019), the court concluded that whether each 

class member consented to receive the fax was an individualized inquiry that was more 
8 

substantial than any questions which might be answered with generalized proof. The 

inquiry would require examination of the nature and scope of each putative class 

member’s contractual relationships with and obligations to Wyndham to determine 

whether that member consented to receiving fax advertisements from approved 

suppliers. Id. “In addition, the fact-finder might need to consider any written or oral 

communications between the franchisee and Wyndham concerning the dissemination, 

by Wyndham, of product advertisements for approved suppliers, which, potentially, 

could involve the testimony at trial of each franchisee.” Id. Additionally, because 

defendant had submitted evidence that it had an ongoing relationship with many 

Wyndham properties and received fax numbers directly from those franchisees who 

wanted leads about its products and any sales, the nature of those relationships and 

specific communications would require examination upon individualized proof. Id. 

 In Gorss Motels, Inc. v. AT&T Mobility LLC, No. 3:17CV403 (JBA), 2019 WL 625699, 

at *6 (D. Conn. Feb. 14, 2019), the defendant had suggested a variety of potential sources 

of individual consent to receive the challenged fax, such as through service contracts and 

Wyndham franchisee agreements and forms. The court declined to certify the matter as 

a class action because the plaintiff had “not proffered any viable method of determining 

individual consent which does not require individualized, fact-based ‘mini-trials’ for 

each potential class member, nor has Plaintiff made any persuasive showing that these 

mini-trials would not come to predominate this litigation if a class were certified.” Id. 

The Court has also considered TCPA class certification rulings outside the context 

of a hotel franchisee suing a product supplier. For example, in Gene & Gene LLC, v. BioPay, 
9 

LLC, defendant “culled fax numbers from purchased databases but also . . . various other 

sources—from information submitted by merchants through BioPay’s website, from 

information submitted at trade shows BioPay attended, and also from lists of companies 

with which BioPay or its affiliates had an established business relationship.” 541 F.3d at 

328. This, the court determined, distinguished the case from another TCPA suit where 

class certification had been granted for the recipients of an unsolicited fax advertisement. 

In that case, there were no questions of individual consent because defendant “had 

obtained all of the fax recipients’ fax numbers from a single purveyor of such information 

and because, given this fact, [plaintiff] was able to propose a novel, class-wide means of 

establishing the lack of consent based on arguably applicable federal regulations.” Id. at 

327–28. 

As in the cases cited above, determining which of the hundreds of customers in 

Brigadoon’s accounting system provided permission for Brigadoon to send facsimiles, 

and the status of any permission, would require examination upon individualized proof. 

Likewise, determining whether the fax numbers obtained from attendees of trade 

conventions were the result of prior permission would require inquiry into each 

attendee’s circumstances and specific communication. Some attendees gave Brigadoon 

oral permission that was memorialized in Brigadoon’s database. Brigadoon was also an 

approved vendor for other hotel chains and obtained fax numbers through a National 

Purchasing Network. The overlap, or combination, of any of these potential sources of 

individual consent, as well as consideration of any franchise agreement language, would 

further impact the inquiry. See, e.g., CE Design, 637 F.3d at 725 (recognizing that a 
10 

combination of actions might have added up to plaintiff’s express invitation or 

permission to receive the fax advertisement). 

Limiting the class to only the Wyndham franchisees would not eliminate the need 

for an individualized inquiry. The Wyndham Fax List includes franchisees operating 

under more than ten different franchise agreements (e.g., Super 8, Ramada, Howard 

Johnson, Travelodge, etc.). The specific language used in each contract, combined with 

other factors, will drive the consent inquiry. See, e.g., CE Design Ltd., 637 F.3d at 725 

(finding arguable defense on issue of consent where plaintiff posted fax number on 

website with phrase “contact us” and authorized the publication of its fax number in a 

directory aimed at firms in the building industry, which authorized the other subscribers 

to the publication, like defendant, to “communicate” with it, including via fax); Gorss 

Motels, Inc. v. Safemark Systems, 931 F.3d at 1097 (analyzing a franchise agreement that 

required plaintiffs to “purchase or obtain certain items only from” approved suppliers, 

such as the defendant, to determine issue of express permission); E & G, Inc. v. Mount 

Vernon Mills, Inc., 316 F. Supp. 3d 908, 912 (D.S.C. 2018) (denying summary judgment on 

issue of prior consent to receive fax where plaintiff entered into franchise agreement 

because it was “not for the Court to decide credibility, weigh the evidence, or decipher 

the nature, contours, and import of the various agreements and any permissible actions 

which may be implicated by this unique set of facts”). 

The Wyndham Fax List is not limited to fax numbers that were previously 

unknown to Brigadoon. It includes fax numbers of Wyndham franchisees who were past 

or present Brigadoon customers or attended trade shows and permitted Brigadoon to 
11 

obtain their contact information. Thus, appearance on the Wyndham Fax List does not 

mean that generalized, class-wide proof will determine whether the franchisee provided 

prior express invitation of permission. Like Gorss, the various Wyndham franchisees 

have their own individual circumstances regarding publishing their fax number in 

directories, entering into Wyndham Property Improvement Plans, and permitting or 

inviting fax communications from Wyndham approved suppliers. 

The Court does not find, as Plaintiff argues, that to avoid class certification 

Brigadoon must specifically identify a member of the proposed class that provided prior 

express permission or produce a log that compiles all prior express permissions. 

Brigadoon has shown that the fax numbers were obtained from a variety of sources. 

Plaintiff, who has the burden of establishing that class certification is appropriate, must 

proffer a viable method of determining a recipient’s consent that does not require 

individualized, fact-based mini-trials for each potential class member. Answering the 

bona fide issue of whether a particular fax was solicited—as Plaintiff argues Brigadoon 

must do at this stage—would require an individualized inquiry. This is telling because 

the method of determining the answer, not the answer itself, is the driving consideration 

under Rule 23(b). See Messner v. Northshore Univ. Healthsystem, 669 F.3d 802, 819 (7th Cir. 

2012) (noting that Rule 23(b)(3) requires common evidence and methodology, but not 

common results). 

As stated in its previous Opinion and Order, this case differs from the scenario 

where a defendant, who had not reviewed the fax list, attempted to “defeat class 

certification by asserting the vague possibility that some of the individuals on the 
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anonymous lists” procured by an entity that did not seek permission to send the faxes 

“may have perchance consented to receiving the fax.” G.M. Sign, Inc. v. Finish Thompson, 

Inc., No. 07 C 5953, 2009 WL 2581324, at *5 (N.D. Ill. Aug. 20, 2009). The circumstances by 

which Brigadoon obtained the fax numbers, as well as the evidence it produced, are 

readily distinguishing aspects of this case. 

This case also bears little resemblance to Bridging Communities Inc. v. Top Flite 

Financial Inc., 843 F.3d 1119, 1125 (6th Cir. 2016), which Plaintiff cites for its reversal of 

the district court’s denial of class certification for lack of predominance because the court 

was unwilling to allow “speculation and surmise to tip the decisional scales in a class 

certification ruling.” In Bridging Communities, plaintiff “presented evidence suggesting a 

class-wide absence of consent.” 843 F.3d at 1125. The evidence was that a fax advertising 

company, B2B, who purchased a list of fax numbers from another company, InfoUSA, 

failed to contact anyone on the purchased list to verify consent prior to faxing them 

advertisements on behalf of B2B’s clients, which included defendant. Id. at 1122. In 

response to this evidence of B2B’s business practice, defendant “merely alleged that class 

members might have given consent in some other way,” but it “did not offer any 

information or evidence to support that theory.” Id. at 1125. 

The facts of this case leave Plaintiff unable to articulate a theory of generalized 

proof, and as a result, the litigants’ efforts on individual questions of whether each class 

member consented will overwhelm any common questions the class might share. The 

result would be the type of mini-trials that class actions are designed to avoid. “If 

resolving a common issue will not greatly simplify the litigation to judgment or 
13 

settlement of claims of hundred[s] or thousands of claimants, the complications, the 

unwieldiness, the delay, and the danger that class treatment would expose the defendant 

or defendants to settlement-forcing risk are not costs worth incurring.” Parko, 739 F.3d at 

1085. 

CONCLUSION 

For the reasons stated above, the Court DENIES the Motion to Reconsider Denial 

of Class Certification [ECF No. 100] and DENIES the Amended Motion for Class 

Certification [ECF No. 102]. 

SO ORDERED on November 4, 2019. 

 

 s/ Holly A. Brady 

JUDGE HOLLY A. BRADY 

UNITED STATES DISTRICT COURT