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Disney argues for arbitration in lawsuit with subscription terms of service

Reg Wydeven
| For Appleton Post-Crescent

Last week my son and I went to see the new movie Deadpool & Wolverine and it was great. It was great to see two iconic characters from comic book pasts on screen at the same time, especially since actors Ryan Reynolds and Hugh Jackman are good friends off screen.

The film was also spectacular because it included cameo appearances by other famous actors, some of whom reprised the roles of previous superheroes. Deadpool & Wolverine is significant because it is the first film to bring together the heroes of the 20th Century Fox films with those of the Marvel Cinematic Universe. This was made possible when Disney, already the owner of Marvel Studios, acquired Fox in 2019 for $71.3 billion.

This move also brought “Star Wars” and “Indiana Jones” into the lineup, making Disney a giant of iconic film franchises. In 2019, the company launched Disney+, a streaming service that featured these franchises in addition to its Pixar catalog, including “Toys,” and its classic animated films such as “Bambi.”

I'm one of over 150 million Disney+ subscribers worldwide. I signed up to access over 2,400 programs on the service, including my beloved Star Wars, Indiana Jones, and Marvel content. But I didn't know everything I was signing up for.

Neither does Jeffrey Piccolo.

In October 2023, Piccolo, his wife Kanokporn Tangsuan, and his mother visited Disney World in Florida. There, they ate at the Raglan Road Irish Pub in Disney Springs. They chose this location because they believed it would have adequate safety precautions in place to not serve dairy and nuts to Tangsuan, who was allergic to them.

The waiter assured the couple that certain foods could be prepared allergen-free, so Tangsuan ordered a vegan doughnut, scallops, onion rings, and a vegan shepherd's pie. After dinner, Tangsuan went shopping and “began to suffer a severe acute allergic reaction.”

Despite administering an EpiPen to herself, Tangsuan tragically died of “anaphylactic reaction due to increased amounts of milk and nuts in her body,” according to a coroner's inquest. Piccolo subsequently sued Walt Disney Parks and Resorts for Tangsuan's wrongful death. He is seeking more than $50,000 in damages under Florida's Wrongful Death Act, as well as damages for emotional pain and suffering, loss of companionship and protection, loss of income, and medical and funeral expenses.

However, Disney has asked the court to dismiss the lawsuit and instead order the parties to participate in arbitration because … Piccolo subscribed to Disney+.

According to court documents, Piccolo agreed to a month-long trial of the streaming service in 2019. The terms of service state that trial users must arbitrate any disputes with the company. In addition, Disney claims that Piccolo used the Walt Disney Parks website to purchase tickets to Epcot Center and that the tickets also contain a mandatory arbitration clause for any disputes.

Disney argued in its motion for arbitration that “Piccolo cannot plausibly deny the existence of a valid arbitration agreement” and that his acceptance of the Terms of Service meant he could not go to court without first submitting the case to arbitration.

Brian Denney, Piccolo's attorney, called Disney's argument “absurd” and said the notion that signing up for a free trial of Disney+ would deny a customer the right to a jury trial “at a Disney affiliate or subsidiary” was so outrageously unreasonable and unfair that it shocks the judicial conscience.

In other words, Denney finds Disney’s position silly.

Reg Wydeven is a partner at the Appleton-based law firm McCarty Law LLP. He can be reached at [email protected].

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