United States District Court, M.D. Florida, Orlando Division
GORSS MOTELS, INC. and E & G, INC., Plaintiffs,
SAFEMARK SYSTEMS, LP, Defendant.
GREGORY A. PRESNELL UNITED STATES DISTRICT JUDGE.
matter comes before the Court on the Motion for Class
Certification (Doc. 60) filed by the Plaintiffs, Gorss Motels
Inc. (henceforth, “Gorss”) and E & G, Inc.
(“E&G); the response in opposition (Doc. 70) filed
by the Defendant, Safemark Systems, LP
(“Safemark”); and the reply (Doc. 78) filed by
and E&G are, respectively, former and current franchisees
of Wyndham Hotel Group (“Wyndham”). They bring
this putative class action against Safemark regarding faxes
sent by or on behalf of Safemark in violation of the
Telephone Consumer Protection Act of 1991
(“TCPA”), as amended by the Junk Fax Prevention
Act of 2005, 47 U.S.C. § 227. (See Doc. 43).
fully appreciate the facts of this case, it is helpful to
understand the nature of the relationship between the
Plaintiffs, the Defendant, and non-party Wyndham.
Wyndham Hotel Group
one of the world's largest hotel franchise companies.
(Doc. 70-6, ¶ 3). It owns numerous franchising
subsidiaries in the lodging industry, including Super 8
Worldwide, Inc. (“SWI”) and Wingate Inns
International, Inc. (“WII”), which offer and
support lodging franchises under the Super 8 and Wingate
guest lodging franchise systems, respectively. (Id.
¶ 6; Doc. 70-4, ¶2).
Plaintiffs Gorss and E&G
1988, Gorss entered into a franchise agreement with Super 8
Motels, Inc. (now SWI) for the operation of a Super 8 motel
for an initial term of twenty years. (See Doc. 70-6,
¶ 7; see id. at 12-38) (the “1988
Franchise Agreement”). By amendment dated March 11,
2009, the parties extended the term of the 1988 Franchise
Agreement through August 15, 2014. (Id. ¶ 7).
Upon the expiration of the 1988 Franchise Agreement, Gorss
entered into another franchise agreement with SWI on
September 10, 2014, for the continued operation of its Super
8 motel for an additional twenty years. (Doc. 70-7, ¶ 5;
Doc. 70-6, pp. 41-87 (the “Gorss Franchise
Agreement”)). The Gorss Franchise Agreement terminated
in 2016 when Gorss sold its Super 8 motel. (Doc. 70-6, ¶
1997, E&G entered into a franchise agreement with Hotel
Franchising Limited Partnership (now WII) for the operation
of a Wingate hotel. (Doc. 70-7, ¶ 9; Doc. 70-6, pp. 200-
239 (“E&G Franchise Agreement”)). The term of
the E&G Franchise Agreement extends through July 8, 2018.
(Doc.70-6, ¶ 26).
executing their respective franchise agreements, Plaintiffs
agreed to operate their lodging facilities in accordance with
certain standards (henceforth, the “System
Standards”) established by their franchisors - SWI and
WII. (Doc. 70-6, pp. 42-47; 200-205). To comply with the
System Standards, Plaintiffs agreed to, inter alia,
purchase certain proprietary items from Wyndham's
“Approved Suppliers.” (See Id. at 46,
204). Plaintiffs also agreed that their franchisors and their
franchisors' affiliates could offer optional assistance
with regard to purchasing items for their motels. (See
id. at 50, 207).
Wyndham's Approved Supplier Program
assist its franchisees with their efforts to obtain services
and items for their motels, Wyndham developed an
“Approved Supplier program.” (Doc. 70-7, ¶
17, 18; Doc. 70-4, ¶¶ 3-4). The Approved Supplier
program is offered through a Wyndham affiliate, Worldwide
Sourcing Solutions, Inc. (“Worldwide Sourcing”),
which identifies and approves third-party suppliers and
service providers. (Doc. 70-4, ¶ 4). Vendors that meet
Worldwide Sourcing's criteria are referred to as
“Approved Suppliers.” (Id.). Wyndham and
Worldwide Sourcing identify Approved Suppliers to franchisees
by, among other things, publishing a supplier directory and
by allowing them to attend and set up displays at conferences
is a Florida corporation that sells and leases safes to
hotels and motels. (Doc. 70-3 ¶ 3). Safemark has been an
Approved Supplier since 2002. (Doc. 70-4, ¶ 15). In
March 2012, Safemark entered into a ‘Second Amendment
to Vendor Direct Supplier Agreement' with Worldwide
Sourcing wherein Safemark agreed to supply in-room safes to
Wyndham franchisees. (Id.).
Sourcing authorized Safemark to communicate with franchisees
regarding the products offered as part of the Approved
Supplier program. (Doc. 70-4, ¶ 16). Worldwide Sourcing
regularly provides Safemark with a database that contains
contact information for Wyndham's franchisees. (Doc.
70-3, ¶¶ 10, 11). Worldwide Sourcing also provides
Safemark, and other Approved Suppliers, the opportunity to
participate in marketing programs that are directed to
franchisees, including one in which Worldwide Sourcing uses a
fax broadcaster to send faxes to franchisees on behalf of the
Approved Suppliers. (Id. ¶ 12).
The 2013 Fax
August 2013, Wyndham emailed Safemark a database with contact
information for its franchisees. (Doc. 70-9, ¶ 5, pp.
7-8). On September 4, 2013, and September 6, 2013, Safemark
used a fax broadcasting company to transmit a one-page fax to
the franchisees listed in the Database. (Id.
¶¶ 5; Doc. 60-4, pp. 4-5; Doc. 43-1, pp. 3-4).
These faxes (the “2013 Faxes”) state in pertinent
part: “Free month (average value $500 per 100 rooms,
” “Free Battery ...