Gorss Motels, Inc. v. Brigadoon Fitness, Inc.

Dist. Ct. did not err in denying plaintiff’s motion to certify proposed class action in plaintiff’s Telephone Consumer Protection Act lawsuit, seeking statutory penalties for itself and on behalf of class of recipients of purportedly unsolicited facsimile advertisements sent by defendant. Dist. Ct. could properly find that plaintiff failed to carry its burden of demonstrating predominance, where there was no generalized proof that could be used to resolve issue of prior permission to send faxes on class-wide basis across various methods that defendant used to obtain fax numbers. This is so, Ct. of Appeals found, where defendant demonstrated that it had large variety of contracts, relationships and personal contacts with recipients of instant fax, and that entities such as plaintiff signed franchise contracts in which they agreed to use approved vendors like defendant to stock and furnish their hotels. Ct. rejected plaintiff’s contention that defendant was required to present evidence of permission given by significant percentage of proposed class to defeat class certification.