EAST ST. LOUIS – Massage Envy parlor chain, which defeated a consumer fraud claim in U.S. district court, accuses plaintiffs of bad faith and seeks to recover about $240,000 in legal fees.
“This conduct stretches beyond zealous advocacy and into the realm of the frivolous,” Massage Envy counsel Joseph Collins of Chicago wrote on June 26.
He asked District Judge David Herndon for an order requiring plaintiffs, counsel or both to pay fees pursuant to consumer laws of Illinois and Missouri.
The order would also require plaintiffs, counsel or both to pay fees pursuant to the court’s inherent authority.
It would also require counsel to pay fees pursuant to U.S. Code.
Plaintiffs Kathy Haywood and Lia Holt denied bad faith in response on July 20.
Their lawyer, Richard Cornfeld of St. Louis, branded the fee request as “a naked attempt to intimidate plaintiffs for determinedly pursuing what they believed to be appropriate and well founded claims.”
He wrote that no published consumer case in Illinois showed such an award.
“This is certainly not the lawsuit where such an award should be made for the first time in the history of this state,” Cornfeld wrote.
Haywood sued Massage Envy under Illinois consumer law last September, alleging that the chain’s advertising misled her.
She claimed she received a $75 gift card from her daughter, who said it was good for an hour’s massage. She claimed she visited a parlor in O’Fallon and received a session that included ten minutes of dressing and consultation and 50 minutes of massage.
Haywood claimed she later purchased a second session, to verify her claim.
She claimed that competitor Massage Luxe charged a similar price for an hour.
The court clerk assigned the case to District Judge Phil Gilbert, who exercised his privilege as senior judge to refuse it.
The clerk assigned it to Herndon.
Massage Envy moved to dismiss last October, for failure to state a claim on which to grant relief.
Cornfeld amended Haywood’s complaint in November, to add Holt as plaintiff asserting claims under Missouri’s merchandising practices law.
Massage Envy deposed Holt on April 13.
According to defense counsel Collins, she testified that she never looked at pricing information on Massage Envy’s website.
In his request for fees he wrote that, “Holt repeatedly testified that she never saw the amended complaint, let alone reviewed its contents, before it was filed.”
He wrote that instead of withdrawing her allegations, her counsel “continued to conduct extensive, grossly irrelevant discovery.”
Herndon dismissed the complaint on June 12, finding Haywood failed to allege that she paid more for the sessions than they were worth.
He wrote that she affirmatively alleged that other companies provided similar 50 minute massages at similar prices and that she suffered no loss because she received her first massage as a gift.
He wrote that she couldn’t claim any loss from the second massage because she knew it would last 50 minutes and was not deceived.
He wrote that Holt’s claims under Missouri law failed because she didn’t allege that she paid more for her session than it was worth.
Two weeks later, Massage Envy moved for an award of fees for all proceedings after amendment of the complaint.
“The assertion of false allegations and implausible claims was entirely avoidable had plaintiffs or their counsel engaged in a reasonable pre-filing investigation, at least before the amended complaint was filed,” Collins wrote.
He wrote that their failure to withdraw Holt’s allegations after her deposition was independently sanctionable.
On July 7, Cornfeld asked Seventh Circuit appellate judges for leave to appeal.
On July 20, in Herndon’s court, he opposed an award of fees.
Cornfeld wrote that Holt didn’t admit her claim was false but “merely testified that she did not recall looking for information on the website because she had already seen a massage envy flier advertising a one hour massage.”
“She was certainly misled by the campaign to deceive consumers alleged in the amended complaint,” Cornfeld wrote.
He wrote that plaintiffs believed their losses were the difference between the value of 60 minute massages and that of 50 minute massages, “not the difference between what they paid and the value of a 50 minute massage.”
“This court obviously disagrees, but that doesn’t mean plaintiffs acted in bad faith by bringing the case,” he wrote.
“It means only that, in the eyes of the court, plaintiffs were mistaken on a point of law.”