Elise R. Sanguinetti

Sanguinetti said it's bad enough that her 50 female clients were sexually assaulted by therapists at Massage Envy massage and skin care spas throughout California. Adding insult, she said, many of them were also duped by the national franchising chain into signing forced arbitration clauses.

The alleged victims are suing on a dozen separate claims under California law. Doe v. Massage Envy Franchising LLC, 18-civ-03706 (S. Mateo Super. Ct., filed July 17, 2018).

The arbitration angle is of particular interest to Sanguinetti, who as past president of the American Association for Justice advocated for passage of the federal FAIR Act, seeking to end forced arbitration of employment, civil rights, consumer and antitrust disputes.

"The Massage Envy litigation is a good example of the problems related to forced arbitration," she said. "One client was trying to end the automatic membership payments she was being charged by the company even though she'd been assaulted. So she downloaded the Massage Envy app, clicked on the terms of use--and the defendant claims that act waived her right to a jury trial."

Sanguinetti and colleagues opposed Massage Envy's effort to compel arbitration for some of their clients on the ground that they had no actual or constructive notice of the purported agreement. "Massage Envy's arbitration agreement is egregiously one-sided, oppressive, and illegal," they wrote in court documents that labeled the agreement unconscionable. "Massage Envy presumably hopes that by requiring confidential, individual arbitrations, coupled with a prohibition against damages and indemnification for any claims that might result from lawsuits against its franchises and their owners, it will avoid legal liability and public notoriety and perhaps reduce the number of other assault victims who come forward with similar claims."

San Mateo County Superior Court Judge Marie S. Weiner has yet to rule on the issue.

Sanguinetti was president last year of the nonprofit lobbying and trial lawyer advocacy group American Association for Justice--formerly the Association of Trial Lawyers of America. "We passed the FAIR Act in the House, but [Senate Majority Leader Mitch] McConnell is sitting on it," she said. The name is an acronym for Forced Arbitration Injustice Repeal.

A current AAJ focus is on pushing back against legislative calls for corporate immunity for Covid-19 liability.

"Nationally and in California businesses could use clear, science-based guidelines to see what are reasonable acts to take when reopening," Sanguinetti said. "We already have state laws on negligence, and we want to make sure workers and consumers are protected."

-- John Roemer