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The 11th Circuit Makes a TCPA Decision

Case background

In Gorss Motels, Inc. v. Safemark Systems, L.P. two companies, Gorss and E&G, are franchisees of Wyndham Hotel Group properties. According to the franchise agreement, Wyndham and affiliates agreed to offer franchisee assistance in purchasing items for the hotels. Fax numbers were explicitly included in these agreements as a method of contact. Safemark, a company that provides safes to Wyndham franchisees, sent two faxes to Gorss, E&G, and over 7,000 other recipients. These faxes failed to provide opt-out instructions for anyone wishing not to receive similar communications in the future. Gorss and E&G filed a lawsuit alleging TCPA violations and sought to certify two classes for the two faxes.

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The outcome

After denying class certification, the District Court granted summary judgment in favor of Safemark, affirming that Safemark had sufficient permission to send the unsolicited faxes. The franchise agreement clearly provided permission to send faxes about items for purchase to be used within the plaintiffs’ hotels, and the District Court decided that opt-out instructions were not required. The Eleventh Circuit affirmed.

The Solicited Fax Rule

Formerly, the “solicited fax rule” required opt-out instructions to be included with “solicited” faxes. Those who failed to include compliant “opt-out” language with solicited faxes remained subject to a $500 fine. After a different District Court ruled that the solicited fax rule was unlawful because it went beyond the FCC’s authority to regulate such matters, the FCC eliminated the solicited-fax rule during the pendency of Safemark’s appeal. Further, the Eleventh Circuit held that the elimination of the solicited fax rule applied retroactively since “the Commission has eliminated the rule and has unambiguously abated liability for any past violations of its requirements.”  

Heffler Claims Group helps to ensure a smooth class action administration from start to finish. TCPA cases raise unique challenges that require solutions that satisfy due process. We share industry best practices and apply a level of unparalleled skill that can only come with over 50 years of experience. Contact Heffler Claims Group to learn more about this and other relevant decisions that could impact your next class action lawsuit.

Mark Rapazzini
Mark Rapazzini consults with clients in the consumer, food and beverage, labor and employment, finance and mass tort practice areas. He has over 25 years of legal experience in cases ranging from individual personal injury litigation to class actions and complex mass torts. Mark also has over fourteen years of experience managing complex claims administration matters and has managed and supervised the administration of employment, securities, consumer, property, and various other types of class action settlements.


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