In late 2017, Massage Envy, the nation’s largest chain of franchised massage spas, issued a statement promising to revamp its corporate policies in an effort to stave off the more than 200 Massage Envy complaints and lawsuits that have been filed against the company and its franchises, and the likely hundreds more than have yet to be filed. Massage Envy’s public statement regarding its revamped corporate policies is available here: https://www.massageenvy.com/our-plan-to-drive-meaningful-change-and-continued-commitment-to-guest-safety/. Despite verbally noting its commitment to stamp out Massage Envy sexual abuse at its massage parlors, the statement is woefully short of the sort of actionable changes that would lead to real improvements in its franchisees.

Among its stated changes, most significantly, Massage Envy has committed to a reporting obligation which, in the event of an allegation of sexual assault, includes providing a client with the contact information for local law enforcement, and then offering them a private room to complete the phone call.

In general, massage parlors are not statutorily mandated to report suspected allegations of physical or sexual abuse. In most states throughout the country, local laws create a class of persons (sometimes called “mandated reporters”) that are legally required to report actual or suspected physical or sexual abuse. Mandated reporters who fail to report such abuse can be charged with a crime that varies in severity based on the state, profession, and manner of abuse. In some states, repeated failure to report suspected abuse can lead to jail time, and other heavy fines and penalties. Mandated reporters are usually people who have consistent contact with individuals that might be at particular risk of physical or sexual abuse, like child care providers, teachers, clergy, mental health professionals, law enforcement, social workers, and similar professions.

While it is clear that practitioners at Massage Envy massage parlors are unlikely to be included in any state’s statutorily mandated sexual abuse reporting scheme, every state permits interested individuals to voluntarily report allegations of abuse to the appropriate authorities. In many cases, these reports can be done anonymously to further incentivize reporting. Massage Envy’s policy of simply providing a phone number and room in which to make a phone call is therefore an almost laughably inadequate solution to what has already become a near-epidemic problem, and further points to Massage Envy’s corporate position to seemingly absolve itself from any real responsibility for its actions, or those of its franchisees.

Related: Who is Responsible for Massage Envy Assault Cases?

Massage Envy’s new corporate policies also suggest that it will create a list of “qualified . . . independent third-party resources” that might assist in franchisees in their investigation of sexual assault claims. This is also woefully inadequate as a serious tool to help franchisees uncover wrongdoing. Massage Envy franchisees are not required, in any way, to conduct their own investigations, nor, even were these franchisees required to conduct their own internal investigations by Massage Parlor corporate, are they provided with any outside guidance as to how these investigations should unfold. By devolving all responsibility for investigations of Massage Envy sexual assault on “qualified third parties” who are almost certainly local in nature, the quality of these investigations will almost certainly vary enormously, if they are even conducted.

The problem of sexual abuse at Massage Envy massage parlors underscores the core incongruity of Massage Envy’s franchise system for operating massage parlors. Massage Envy is a relatively new company: it was founded in the early 2000s by two entrepreneurs who had previously owned a chain of successful fitness/gym franchises. At the time, most massage parlors were operated in conjunction with other businesses, such as day spas, or via a medicinal or therapy practice. Some were independently owned and operated, usually located in strip malls or other, dedicated locations. There existed few, if any, massage parlor franchise chains. The founders of Massage Envy believed that they could bring the success they enjoyed in the fitness industry to the massage industry by franchising the business, in the same manner that gyms and fast food restaurant chains franchise their brands. By 2009, Massage Envy had been sold to a private equity firm, and its founders had become millionaires. By 2018, Massage Envy franchises are located in nearly every state, in some countries outside of the country, boast millions of members, and have conducted over one hundred million massage services.

Although, on the surface, creating a franchise model of massage parlors seems like an ingenious idea (and, indeed, is one that made its creators and investors millions of dollars), doubtlessly its founders never considered why the massage industry had not, already, been franchised in this manner by the early 200s. Indeed, many of the most successful companies and industries had explored the franchise model as early as the 1950s. McDonalds, perhaps the most successful franchise in United States history, and, in some ways, the creator of the modern franchise model, began franchising restaurants in 1953, with many other fast food competitors following suit. Restaurants, gyms, convenient stores, real estate brokerages, hotels, and various other manners of franchises have proliferated throughout the country since this time.

However, what many of these franchises have in common, and that Massage Envy and similar massage service parlors lack, is their limited exposure to serious legal liability for their actions, and functional inability of the franchise owner to control the practices of its franchisees. While fast food chains have been famously sued for all manner of issues, these issues usually revolve around the preparation of food, or the safety of their locations. Both food and premises safety issues, while serious concerns for both the franchisor and franchisee, are relatively straightforward issues that are usually solvable exclusively on a corporate level. In the case of a fast food franchise, for example, fast food franchisors often maintain nation-wide food product distributions schemes. Food quality issues can therefore be solved by the franchisor in selecting a new food product distributor, or by holding existing distributors to higher standards. Because of the volume of food products purchased by fast food franchisees, there is massive competition among distributors to win business from large fast food chains. And, because food product distribution occurs on a national level, a single mistake by the franchisor could create serious issues for all of its franchisees and for the company as a whole.

Similarly, premises liability issues can be solved, or at least minimized, on a corporate level. The franchisor can specify the design of the franchisee’s location to minimize hidden risks or hazards. Corporate rules can be (and have been) promulgated to ensure that food is prepared in a consistent and safe manner. Increasingly, food preparation and customer service issues have become computerized, meaning that the franchisor can review the behavior of its franchisees electronically, and franchise owners can more effectively manage owned locations without being physically present. The franchisor can, and frequently does, specify minimum staffing requirements at its franchises to ensure that customers are treated safely and that the brand in protected.

In stark contrast, the product that massage parlors like Massage Envy sells is a personalized service: massages and similar services. This personalized service must, by its nature, be provided by massage parlor therapists who are trained and licensed in each locality in which a Massage Envy massage parlor operates. Unlike in the case of food distribution, which can occur on a national level—or even a fitness center, which can purchase fitness equipment from national distributors subjected to the corporate franchisor’s own quality control specifications—massage therapists must be evaluated by individual franchise owners for their qualifications and fitness to conduct treatments.

This means that even were Massage Envy to display a true interest in ensuring customer safety and stamping out sexual assault, the simple structure of its company means it may be functionally unable to exercise the control needed to ensure that its franchises are safe for the general public. Indeed, this may be the very reason that companies like massage parlors had not been already franchised in the same way that fast food restaurants had been franchise a half century before. This may be a similar reason as to why healthcare franchises, in general, have been slow to expand within the country, and why these franchises only usually operate in specific areas (like urgent care with a limited scope, or optometry).

Although Massage Envy can promulgate corporate policies to control the hiring of these therapists, coordinate background checks, and react to cases of abuse or assault, Massage Envy lacks the same level of control that other franchises have over the products of their franchisees. Moreover, Massage Envy’s almost muted response to the brewing issues against it suggest that Massage Envy has no particular interest in actually addressing these issues.

Related: Toothless Corporate Policies Continue to Fail to Protect Massage Envy Customers

The franchise model benefits Massage Envy, in that it can—and has, consistently for the past several months in light of the bevy of lawsuits levied against it—disclaimed essentially all liability for the actions of its franchisees. Massage Envy’s legal strategy has mostly been to pass off any claims against it to individual franchisees and their owners and operators. For example, Massage Envy might claim that it cannot control the hiring and firing of individual massage operators (because, as noted, this is done exclusively on a local level, often only with the most minimal input from the corporate Massage Envy entity itself). Because it cannot exercise such control, it therefore lacks the duty to protect against the hiring of massage therapists that may be more likely than others to conduct sexual assaults. Individual Massage Envy franchises doubtlessly have such a duty and are therefore the most likely entities to be held liable to pay damages. This has the effect of not only limiting the possible recovery of assaulted customers (because individual franchises are less likely to have substantial funds than their corporate parent), but of also protecting the corporate franchise from having to pay out substantial damages.

Of course, the media fury surrounding Massage Envy sexual assault at franchises undoubtedly does have the effect of diminishing the brand as a whole, which, because it may limit Massage Envy’s ability to open more franchises or collect franchisee fees from existing locations, certainly has (and will) inspire it to take minimal action to protect its brand. Indeed, as has been widely reported in the media, Massage Envy’s guidance to franchise owners regarding sexual assault issues has been to, at almost all costs, protect the Massage Envy brand, rather than to protect its consumers.

Massage Envy’s most recent corporate policy announcements seem more of the same. Providing assaulted customers with the phone number of law enforcement and a room in which to make the phone calls pits the incident as one between the customer and the individual massage therapist. In contrast, were Massage Envy’s policy that a Massage Envy manager must directly report the sexual abuse to local law enforcement (even in an anonymous way), the franchise itself has now been implicated in the assault.

The solution to rampant Massage Envy sexual assault can therefore take many structure. First, governments can step in to regulate the operation of franchises like Massage Envy locations, in the same way that governments oversee the operations of medical facilities. Governments can also regulate whether companies like Massage Envy can even be operated in the franchise model discussed here. Second, courts can impute liability and responsibility for the actions of franchisees more easily to their corporate parent by expanding and redefining the concept of duty. Whereas most courts impute the “duty” to protect consumers against sexual abusers to the individual franchise exclusively, expanding this duty to include Massage Envy as a corporate entity would expose Massage Envy to significant more liability. Third, legislation can be passed to document and more thoroughly review the licensure proceedings for massage therapists in every state so that, even in the event that Massage Envy and its franchisees choose to do nothing, consumers can still generally be protected from abuse.

Finally, those affected by Massage Envy sexual abuse at massage parlors and similar locations should come forward to publicly embarrass and bring publicity to the issues at massage parlors throughout the country. Hiring strong legal counsel that can fight for justice while also bringing awareness to the issues is the most direct way to harm the Massage Envy brand, and also to receive financial compensation for injuries suffered.

Thompson Law Office specializes in Massage Envy sexual assault cases. Contact California Massage Parlor Abuse attorney Bobby Thompson if you or a family member has been sexually abused at Massage Envy and you want to pursue a Massage Envy lawsuit. Thompson Law Office has the experience and skills to get you the maximum compensation you need and deserve.