Column: Disney's bid to arbitrate husband's wrongful death suit has a chance
The opinions expressed here are those of the author, a columnist for Reuters.
By Jenna Greene
Aug 16 (Reuters) -While Disney might not be winning any public relations awards with its push to move a wrongful death lawsuit brought by a widower in Florida out of the courts and into arbitration, lawyers for the entertainment giant are not without precedent in arguing the attempt is warranted.
Disney lawyers from White & Case say a lawsuit by the husband of a woman who died last year from an allergic reaction after eating at a restaurant in the Disney Springs shopping complex belongs in arbitration because he signed up for a trial of streaming service Disney+ in 2019.
In doing so, the defense asserts, Jeffrey Piccolo agreed to terms of use that include binding arbitration of “all disputes” involving The Walt Disney Company or its affiliates – never mind that a personal injury claim stemming from allergen-tainted food has little connection to, say, watching a Marvel movie on your television.
Many social media users on X have reacted with outrage, calling Disney’s motion to compel arbitration “ridiculous” “abhorrent” and “unbelievable,” among other choice insults.
But that doesn’t mean it won’t succeed.
Experts tell me the suit may hinge on how broadly the judge interprets the arbitration agreement.
A Disney spokesperson in a statement said, “We are deeply saddened by the family’s loss and understand their grief.”
The spokesperson also said the restaurant where the woman, who was severely allergic to nuts and dairy, dined “is neither owned nor operated by Disney.”
Outside counsel Raoul Cantero, a former Florida Supreme Court justice who heads White & Case’s Miami office, did not respond to a request for comment.
The case began when Piccolo, his wife Kanokporn Tangsuan (who was a doctor) and her mother ate at Raglan Road Irish Pub and Restaurant on Oct. 5, 2023, allegedly selecting the eatery because both Disney and Raglan advertised that it made accommodating people with food allergies a top priority.
Despite alleged assurances from the waiter that Tangsuan’s order was allergen-free, she had an acute allergic reaction shortly after eating battered sea scallops, broccoli and corn fritters, onion rings and vegan shepherd's pie, according to the complaint in Orange County court. She died of anaphylaxis from elevated levels of nut and dairy in her system, the complaint said.
Legal counsel for Raglan Road from Lewis Brisbois did not respond to a request for comment.
In its initial response in April to the complaint, Disney made no mention of arbitration, instead arguing it was not liable because it has no control over Raglan’s operations or management and merely serves as its landlord.
In an under-the-radar filing in late May, Disney offered a new defense: that the complaint is subject to arbitration based on Piccolo’s Disney+ subscription, as well as his use of the company’s website in 2023 to buy theme part tickets.
Corporations tend to favor arbitration in part based on an assumption that professional jurists presiding over the matter will take a more dispassionate view of evidence and damages than jurors swayed by their emotions.
Piccolo’s lawyer Brian Denney, who did not respond to a request for comment, blasted Disney’s “surreal” argument in court papers earlier this month in a filing that's attracted widespread media coverage.
If Disney's position is accepted, Denney said, it would mean that any person who signs up for Disney+, even if only for a short time, “will have forever waived the right to a jury trial” against any and all Disney entities.
Implausible as that may sound, the notion is not without precedent. For example, as my Reuters colleague Alison Frankel reported, the 4th U.S. Circuit Court of Appeals in 2020 held in Mey v. DirecTV that a customer’s contract with AT&T signed long before AT&T acquired DirecTV nonetheless compelled the plaintiff to arbitrate an unrelated claim against the satellite company.
On the other hand, the 9th Circuit came to the opposite conclusion a month later. The San Francisco-based court said it would be “absurd” to make customers arbitrate all disputes with any corporate entity that happens to be acquired by AT&T years or even decades in the future.
In the Disney case, Matthew Adler, a Troutman Pepper partner and author of the law school textbook “Commercial Arbitration: Cases, Problems and Practice,” said that to him, it’s “obvious that an arbitration clause exists.” Adler is not involved in the Disney case.
“I am less positive about the reach of the clause itself,” he said via email. That is, can the arbitration agreement “be interpreted to reach far beyond the streaming services” to cover a wrongful death claim at a restaurant? Adler suggested that deposition testimony and other documents may help the court reach an answer.
A recent decision by a Texas court of appeals involving a bank customer and a broken chair offers another example of courts taking an expansive view of arbitration clauses.
In that case, arbitration scholar Imre Stephen Szalai, a professor at Loyola University New Orleans College of Law, said via email, a customer sitting in the bank’s lobby in a chair that suddenly collapsed filed a personal injury lawsuit against the bank. The Beaumont-based court dismissed the case based on the arbitration clause found in the terms governing the customer’s bank account.
Other courts, however, take a "nexus" approach, Szalai said, and examine the extent to which the claim has a connection with the arbitration agreement. In the Disney case, a judge may find that “the purpose of the Disney Terms of Use was to govern online, intellectual property rights, but not a visit to the restaurant.”
“Disney does not have a ‘slam dunk,’ sure-win case,” he added.
Reporting by Jenna Greene
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