United States Court of Appeals For the Seventh Circuit No. 21-1358 GORSS MOTELS, INC., Plaintiff-Appellant,

v.

BRIGADOON FITNESS, INC. and BRIGADOON FINANCIAL, INC., Defendants-Appellees.

Appeal from the United States District Court for the Northern District of Indiana, Fort Wayne Division. No. 1:16-cv-00330 — Holly A. Brady, Judge.

ARGUED SEPTEMBER 24, 2021 — DECIDED MARCH 24, 2022

Before EASTERBROOK, ROVNER, and KIRSCH, Circuit Judges. ROVNER, Circuit Judge. Gorss Motels, Inc. brought an action under the Telephone Consumer Protection Act (“Act”) seeking statutory penalties for itself and on behalf of a class of recipi- ents of purportedly unsolicited facsimile advertisements sent by the defendants. The district court declined to certify the 2 No. 21-1358 original class or a modified version, finding in each instance that common issues did not predominate. Gorss then pro- ceeded to summary judgment on its own claim and prevailed. On appeal, Gorss challenges the district court’s denial of class certification. We affirm. I. At the relevant time, Gorss Motels, Inc. (“Gorss”) operated a Super 8 Motel as a franchisee of Wyndham Hotel Group, LLC (“Wyndham”), under a franchise agreement signed in October 1988.1 Gorss agreed in that contract to furnish the facility in accordance with Wyndham’s standards, and to purchase from Wyndham or its approved vendors an extensive list of supplies and equipment ranging from soap and toilet tissue to carpeting and mattresses. Brigadoon Fitness, Inc. (“Brigadoon”)2 sells fitness equipment to hotels and others. Brigadoon is an approved vendor for Wyndham franchisees and was subject to a “Sourcing Agreement” with Worldwide Sourcing Solutions, Inc. (“Worldwide”), a wholly-owned subsidiary of Wyndham Worldwide Corp. and an affiliate of Wyndham. Under the Sourcing Agreement, Brigadoon is allowed to sell fitness

1 Gorss signed its original twenty-year franchise agreement with Super 8 in 1988. Super 8 was later acquired by Wyndham, and Gorss executed an Amendment to the franchise agreement in 2009, extending the franchise relationship five more years. In 2014, Gorss signed an entirely new franchise agreement with Wyndham. The 1988 agreement, as amended in 2009, governed at the time of the relevant events. 2 The parties treat Brigadoon Fitness, Inc. and Brigadoon Financial, Inc. as the same in this appeal. We will refer to the defendants jointly as “Briga- doon.” No. 21-1358 3 equipment to Wyndham franchisees through marketing programs. As part of this arrangement, Wyndham periodically provided contact information for its franchisees, including fax numbers, to Brigadoon. Brigadoon had similar “approved vendor” relationships with others in the hospitality industry including Interstate Hotels Group, Best Western, Choice Hotels, and LaQuinta, each of which in turn had contractual relationships with their franchisees. As was the case with Wyndham, each of these hotel chains and their franchisees also periodically provided Brigadoon with contact information, including fax numbers that had been collected at various times and under differing circumstances. Gorss provided contact information, including fax num- bers, to Wyndham and others for business purposes and for directories that were available to the hospitality industry and to the public. Steven Gorss also attended conventions and trade shows on behalf of Gorss, including in 2012, and person- ally provided contact information to Wyndham-approved suppliers at these events, sometimes by swiping an identifica- tion badge at a convention booth. Gorss received a fax from Brigadoon on April 17, 2013, advertising