Lands’ End, a Wisconsin-based clothing retailer, was named as a defendant in a putative class action filed January 4 under the Telephone Consumer Protection Act in federal court in Connecticut. The TCPA includes, as a result of the Junk Fax Protection Act of 2005, prohibitions on sending unsolicited fax advertisements without a required opt-out notice containing various discrete items of information. The plaintiff in the case, Gorss Motels Inc., alleges it received an unsolicited fax advertisement from Lands’ End that did not include the required opt-out language.
Gorss Motels seeks to represent both itself and a class consisting of any persons who received faxes from Lands’ End lacking an opt-out notice. Although the TCPA’s language requires an opt-out only on unsolicited fax advertisements, Gorss Motels proposes to represent a class that includes recipients of both unsolicited and solicited faxes, as long as those faxes also lacked an appropriate opt-out notice. That theory of liability is based on a 2014 FCC regulation interpreting the TCPA’s opt-out requirement to apply to any fax advertisement, whether unsolicited or not (that interpretation is currently being challenged before the D.C. Circuit Court of Appeals).
The case presents an interesting factual situation because the fax Gorss Motels received (and attached to the Complaint) was addressed to owners and employees of Wyndham Worldwide Corp. but was nonetheless allegedly received by Gorss Motels. Gorss Motels is proceeding on the theory that the TCPA attaches liability to whatever company’s goods or services are advertised, meaning that even if Lands’ End did not send the fax (or sent it to Gorss Motels inadvertently), under Gorss Motels’ theory of the case, Lands’ End remains liable.
At the same time it filed its Complaint, Gorss Motels also filed a motion for class certification and for a temporary stay of further proceedings on that motion. The motion argues that it is a necessary placeholder to prevent any efforts to moot the class claims by devising a work-around to the Supreme Court’s holding in Campbell-Ewald Co. v. Gomez, 136 S. Ct. 663, 672 (Jan. 20, 2016). In Campbell-Ewald, the Supreme Court rejected the idea that an unaccepted Rule 68 offer of judgment can moot a class claim. Motions like Gorss Motels’ were common prior to Campbell-Ewald given the threat that some courts may treat an unaccepted offer of judgment as a basis to moot the individual claim, but Gorss Motels has extended the tactic post-Campbell-Ewald to try to ensure its class claims are protected from any efforts to moot its individual claim.