Dr. Kanokporn Tangsuan was extremely cautious when it came to food. She had a severe allergy to nuts and dairy, and always carried an EpiPen. And she would repeatedly remind restaurants about her allergies before dining out.
Last October, she went to Raglan Road Irish Pub & Restaurant near Disney World with her husband and mother-in-law, and as per usual, she questioned the waitstaff about whether they could prepare allergen-free food. After receiving the chef’s assurances, Tangsuan ordered. She collapsed within the hour, and later died of anaphylaxis due to elevated levels of dairy and nuts in her system.
In February, Tangsuan’s widow, Jeffrey Piccolo, filed a wrongful death lawsuit against Raglan Road and Disney in Florida state court, alleging negligence and mental pain and suffering. But now, Disney is arguing that the case can’t proceed, because back in November 2019, Piccolo used his PlayStation to sign up for a free trial of Disney+.
What does temporarily subscribing to an overpriced streaming service have to do with a tragic and preventable death? Like many companies, Disney provides digital terms of service via “clickwrap,” the box of dense legalese that everyone hits AGREE on without really reading. And in order to register for Disney+, Piccolo had to select “Agree & Continue” on a Subscriber Agreement, which states in capital letters that “any dispute” between Disney and the consumer “must be resolved by individual binding arbitration”—a form of out-of-court dispute resolution that notoriously and consistently favors corporations over regular people. The Subscriber Agreement also references a separate Terms of Use document, which similarly provides that “all disputes” must be resolved through individual arbitration.
And when Piccolo bought Epcot tickets in September 2023, he ostensibly agreed to another set of Terms and Conditions that apply to ticket holders—terms that “apply in addition to, and not in lieu of, the Disney Terms of Use.” For what it’s worth, those Epcot tickets were never used; the restaurant at which Tangsuan and Piccolo ate is open to the public, and she died two days before they planned to visit the theme park itself.
In May, citing these terms of service, Disney filed a motion to compel arbitration, arguing that “Piccolo cannot credibly dispute that a valid arbitration agreement exists,” and that his acceptance of terms of service means he cannot get into court. In other words, according to Disney’s lawyers, streaming a few episodes of The Mandalorian means you agreed to waive your right to sue Disney if Disney kills your wife four years later.
(Photo by Olga Thompson/Walt Disney World Resort via Getty Images)
This is, as Piccolo put it in his response, “preposterous.” Piccolo pointed out how far removed his use of the streaming service is from his wife’s death, and questioned how it would even be possible for him to have bound the estate of a decedent that did not exist at the time. “There is not a single authority in Florida that would support such an inane argument,” his lawyers wrote.
But there’s a reason why Disney’s attorneys believe this is a viable argument: The Supreme Court has been expanding the reach of arbitration clauses for decades. This has allowed corporations to bully more and more people out of courtrooms, and shielded big businesses from accountability for their bad acts. Disney is playing a hunch that in the legal landscape the Court helped shape, Piccolo’s claims will never make it before a jury.
The Court’s pro-arbitration bias is so strong that under its existing precedent, even disputes about whether something is arbitrable must be resolved by—you guessed it—arbitration. In 2010’s Rent-A-Center West v. Jackson, Justice Antonin Scalia wrote for a 5-4 Republican majority that “parties can agree to arbitrate gateway questions of arbitrability,” including whether a particular dispute is covered by an agreement. And in 2019’s Harry Schein v. Archer & White Sales, Justice Brett Kavanaugh wrote for a unanimous Court that courts have “no power” to decide questions of arbitrability that have been designated to an arbitrator, “even if the court thinks that the argument that the arbitration agreement applies to a particular dispute is wholly groundless.”
On the one hand, Disney’s argument is preposterous. On the other, the Supreme Court has literally said that preposterousness doesn’t matter. Piccolo’s response to Disney, which says in bold and italics that he “would clearly have only been agreeing to arbitrate his own individual claims arising from his use of the Disney+ service,” is plainly correct. Only corporate capture of the Court allows Disney to argue to the contrary with a straight face.
