The California Court of Appeal recently held that a patron of a Massage Envy franchise in San Rafael had not entered into a contract with franchisor Massage Envy (“MEF”) when assent to the contractual agreement was hidden in the franchisee’s General Consent electronic document. Doe v. Massage Envy Franchising, No. A161688, 2022 Cal. App. LEXIS 1066 (Ct. App. Dec. 29, 2022)
The check-in process involved electronically consenting two electronic forms, one of which was developed by MEF for is franchisees, entitled “In-Store Application.” That Application was inserted into the General Consent form as a hyperlink. The General Consent form was for the San Rafael franchisee.
The General Consent form required Jane Doe to scroll through the Terms and Conditions. However, the Application did not and as Jane Doe was pressured to sign, she did not see the binding arbitration provision that MEF inserted in its separate Terms and Conditions
This case serves as a reminder to franchisors that click wrap agreements will not be enforced unless notice, consent and fairness are present.
This case report was prepared by Sam Wolf (Samwolf464@gmail.com)