America has a reputation for being a litigious nation, so you wouldn’t be surprised to learn that corporations are careful to protect themselves from possible lawsuits for any number of grievances. Disney, however, may have gone too far even for most Americans in its attempt to counter a recent lawsuit brought by a devastated visitor to one of its resorts.
Its argument, which it has since backed down from, is a harsh reminder to pay far closer attention to those terms and conditions that appear before we click on the “agree and continue” button.
Last week it was reported that a man named Jeffrey Piccolo was suing the Walt Disney Company after his wife, Kanokporn Tangsuan, died because of an allergic reaction to food served to her at a restaurant in one of the company’s resorts. Piccolo claimed that she was given food that contained enough traces of nuts to send her into fatal anaphylaxis, despite numerous assurances that his wife’s allergy had been noted and that the food she was served was “allergen free”.
Initially, Disney claimed that it was not responsible because the Raglan Road restaurant where the tragedy occurred was not owned by the corporation but was run on property that it leases to another company that owns and operates the restaurant. In a statement sent to the website IndieWire, a Disney spokesperson said: “We are deeply saddened by the family’s loss and understand their grief. Given that this restaurant is neither owned nor operated by Disney, we are merely defending ourselves against the plaintiff’s attorney’s attempt to include us in their lawsuit against the restaurant.”
That may have been the end of the story but in a bizarre turn of events that catapulted the incident to the entertainment pages of many news sites, Disney then invoked a strange clause that it claimed would further exonerate it from any legal action and, in particular, any attempt by Piccolo to seek a trial by jury for his claim.
In November 2019, Piccolo, like millions of other Americans and subscribers around the world, signed up for the recently launched Disney+ streaming service. While you may think that Piccolo’s TV watching preferences couldn’t possibly have anything to do with his determination to bring someone to justice for the death of his wife, you’d be wrong, according to Disney.
That’s because, as Disney pointed out, the terms and conditions of the registration process for Disney+ include a clause that prevents subscribers from bringing to trial any legal claims against the company and its subsidiaries. Termed a “clickwrap agreement”, the clause is the equivalent of sneaking gun-related legislation on to the end of an infrastructure bill, in the hope that no-one will read it too carefully. It doesn’t even matter whether Piccolo reviewed the terms and conditions before clicking, because as long as he clicked, according to Disney, he agreed and that is the end of that.
As it should have expected, the reaction to this crazy claim was swift and outraged, and not good for Disney — a company that prides itself on pleasing all of the people all of the time.
After a weekend of intense coverage and criticism, the corporation announced on Monday that it would not seek to enforce the anti-legal action clause of its Disney+ subscriber agreement on the grieving and increasingly angry Piccolo, who is seeking more than the $50,000 damages claim that is the threshold needed for his case to be brought to court, though the exact amount has not been revealed.
In a statement sent to IndieWire, Disney Experiences chair Josh D’Amaro said: “At Disney, we strive to put humanity above all other considerations. With such unique circumstances as the ones in this case, we believe this situation warrants a sensitive approach to expedite a resolution for the family who have experienced such a painful loss. As such, we’ve decided to waive our right to arbitration and have the matter proceed in court.”
That’s a very magnanimous move on the part of the company and one that was obviously made without consideration of public outcry or pressure, but the bigger issue around reading the small print still lurks. Whether Disney will completely remove the offending clause from its terms and conditions remains to be seen. As Piccolo’s lawyer, Brian R Denney, told IndieWire: “The right to a jury trial as set forth in the seventh amendment is a bedrock of our judicial system and should be protected and preserved. Attempts by corporations like Disney to avoid jury trials should be looked at with scepticism.”
He added that Piccolo intended to continue his attempt to “pursue justice on behalf of his beloved wife at the trial court level” and hoped his tragic situation would have at least helped to raise “awareness of the millions of people of all ages and walks of life who suffer with food allergies. This awareness can help effectuate positive change to corporate food preparation policies and procedures.”
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