Summary
The Second Circuit held that a hotel franchisee gave "prior express invitation or permission" under the TCPA to receive fax advertisements from a franchisor-approved supplier, where the franchise agreement authorized the franchisor to offer optional purchasing assistance and the franchisee provided its fax number with knowledge that such offers would come by fax. The court also found that the franchisee had standing based on the nuisance and privacy invasion from unsolicited faxes, and that permission extended to faxes sent on behalf of the approved supplier because the franchisee agreed to the process in which the franchisor sent advertisements for approved suppliers. The judgment granting summary judgment to the defendant was affirmed.
Topics
Practice areas
Questions Presented
- Whether Gorss has Article III standing to sue under the TCPA.
- Whether the faxes Gorss received were 'unsolicited advertisements' given that Gorss gave 'prior express invitation or permission' through its franchise agreements with Wyndham.
- Whether any permission given to Wyndham extends to Lands' End as the sender of the faxes.
Holdings
- Gorss has standing because the nuisance and privacy invasion of receiving unsolicited fax advertisements, along with the occupation of the fax machine and use of paper and ink, constitute a concrete injury in fact that is fairly traceable to the defendant's conduct and redressable by a favorable decision.
- The faxes were not unsolicited advertisements because Gorss gave 'prior express invitation or permission' to receive them through its franchise agreements with Wyndham, which clearly and unmistakably granted permission to receive fax advertisements from Wyndham and its affiliates on behalf of approved suppliers such as Lands' End.
- The permission Gorss gave extends to the faxes at issue because Gorss agreed to receive fax advertisements from Wyndham and its affiliates on behalf of approved suppliers such as Lands' End, and the faxes were sent as part of that agreed-upon process.
Key quotations
“any material advertising the commercial availability or quality of any property, goods, or services which is transmitted to any person without that person’s prior express invitation or permission, in writing or otherwise.” (5)
“You will purchase or obtain certain items we designate as proprietary or that bear or depict the Marks, such as signage, only from suppliers we approve. You may purchase other items for the Facility from any competent source you select, so long as the items meet or exceed System Standards. . . .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.” (6-7)
“Gorss agreed to the process that occurred here, in which Wyndham sent Gorss fax advertisements on behalf of a Wyndham-approved supplier, Lands’ End, advertising products that could be used in franchised motels.” (28)
“Express permission to receive a faxed ad requires that the consumer understand that by providing a fax number, he or she is agreeing to receive faxed advertisements.” (16)
Factual background
Gorss Motels, a Wyndham franchisee, entered into franchise agreements with Wyndham that included provisions for approved suppliers and optional assistance with purchasing. Gorss provided its fax number to Wyndham. As part of the Wyndham approved supplier program, Wyndham sent faxes on behalf of approved suppliers, including Lands' End. Gorss received three faxes from Lands' End in 2015 and 2016 advertising branded uniform apparel. Gorss did not opt out of receiving these faxes. Gorss filed a putative class action under the TCPA.
Procedural history
Gorss filed a class action under the TCPA in the District of Connecticut. The district court granted summary judgment to Lands' End, concluding that Gorss gave prior express permission. The court denied class certification as moot. Gorss appealed.