Verdict Against Massage Heights Exposes 'Pervasive' Assault Problem, Attorney Says - Franchise Times

[massage]

Beth Ewen

Illustration by Jonathan Hankin

When a federal jury in Houston found Massage Heights Franchising liable for the sexual assault of a customer and awarded $3.3 million in damages, last November, it was one of only a handful of such verdicts since criminal cases began roiling the spa industry.

“There’s been a big uptick in the last three years, in people reporting sexual assault in the spa setting. Massage Envy has gotten a lot of attention; Hand and Stone is second. Massage Heights, MassageLuxe, Elements, Essentials Massage,” said Adam Horowitz of Horowitz Law Firm. His firm has handled about 60 to 80 such cases, starting when a 2017 story in BuzzFeed chronicled more than 100 sexual assault cases at Massage Envy, in gruesome detail. News reports of assaults at the chains listed above range from about a half-dozen to more than 200.


“I’m not sure they know how to fix it,” Horowitz said about executives at the chains. “I think that they would prefer the problems would be there very quiet, and pretend it doesn’t exist. In my view there’s a lot of perpetrators who infiltrate the field and get into the field for sexual gratification.

“The second thing, the setting itself, where women are unclothed with their eyes closed, and you’re in a dimly lit room, you’re in such a vulnerable setting. There’s no other business where you’d willingly put yourself in that situation.”

In the Massage Heights case, the victim’s attorney, Anjali Nigam of The Nigam Law Firm, said Massage Heights co-founder and former CEO Shane Evans and other executives knew about incidents of sexual assault there dating back to 2012. “Ms. Evans admitted on the stand to have actual knowledge of at least 53 reports of sexual misconduct before my client went in, in 2017, and they did nothing,” Nigam said.

“Massage Heights Franchising could care less. It is a silent danger that is prevalent,” Nigam said. “The customer has no idea that this is going on. And Massage Heights Franchising has actual knowledge of this being a pervasive problem, not just in the massage industry but within their own system, and they’re not making changes.”

Massage Heights will appeal the verdict, its outside attorney said. “We believe legally speaking this shouldn’t have been submitted to the jury. The law in Texas is that the franchisor can’t be held liable for the type of actions that we did not dispute occurred,” said Forrest Wynn of Hicks Davis Wynn. “The jury concluded that there was a criminal act here. We believe that is a reason alone it shouldn’t have gotten to the jury.”

‘It breaks my heart’

Evans, now vice-chairwoman at the brand she co-founded in 2004 with her husband, Wayne Evans, and Susan Boresow, president and CEO since May 2021, declined to comment on the case.

CG Funk, senior vice president of culture and industry relations at Massage Heights since last August, agreed to give an interview on the topic in general, not the legal case in specific. She was the only person willing to do so at six massage franchises contacted for this article.

“As massage therapists of course it breaks my heart, because I’ve met thousands and thousands of massage therapists over my career, and there’s so much more of them than there are of these cases,” said Funk, who was an executive at Massage Envy from 2005 to 2015 and is a massage therapist herself. “These types of things are hard. One sexual misconduct is too many from my point of view.


“I can say there are lots that’s been done. Now we have 47 states that regulate massage; we have two associations; we have national association boards. There are so many great things that have gone on in the last 20 years,” she said.

“Massage Envy opened its first in 2002. My experience is that spa franchises have really led the way in demanding professional standards,” she said. “Before that, massage was a little more free-flowing.”

Massage Heights has always required franchisees to conduct background screening of employees, but now they are mandated to use one company, Universal Background Screening, for the task. Massage Heights since February 2021 also mandates a safety alert button in all treatment rooms. And Massage Heights has a new partnership with Redirect, a third-party firm that investigates alleged misconduct for franchisees.

Massage Envy sent a statement that read in part: “The Massage Envy brand standards are designed to foster a safe and professional experience for the tens of thousands of Massage Envy members and guests who visit the more than 1,100 independently owned and operated franchise locations daily.”

Elements Massage is “committed to maintaining a safe, empowering and wellness-oriented experience for everyone who interacts with a studio,” said its statement, in part.

MassageLuxe declined to comment. Hand and Stone Massage & Facial Spa and Essentials Massage did not reply to requests for comment.

‘A vehicle for change’

Horowitz said his practice represents “sexual survivors in all realms, whether it happens in church or school or in a doctor’s office.” Unlike the Massage Heights case, most of the civil cases in the spa industry settle.

“Believe it or not, franchisees and even franchisors have insurance that cover those things. Insurance companies pay attention to that the most. It could cause insurance companies to get out of that market,” he said.

“I think of civil lawyers and civil justice as a vehicle for change,” Horowitz said. “The threat of lawsuits, the threat of liability, causes the industry to become safer. For example, we have seatbelts because of litigation. I think when a business or an industry is faced with massive legal exposure, they have to come up with ways to do things better and safer for their consumers.”

Beth Ewen is senior editor of Franchise Times, and writes the Continental Franchise Review® column in each issue. Send interesting legal and public policy cases to [email protected].