THE AUTHORS<\/strong>: Maleficent, a self-proclaimed \u2018Mistress of All Evil\u2019, is a powerful fairy living in the Moors, a magical forest realm bordering King Stefan\u2019s human kingdom. In Disney\u2019s recent retelling of her villainous role in the animated film Sleeping Beauty, we discover another twist to the tale, the history she shared with King Stefan, Princess Aurora\u2019s father, and Maleficent\u2019s true colors. Despite initially cursing the infant Princess during her christening to prick her finger on the spindle of a spinning wheel and die before the sun sets on Aurora\u2019s sixteenth birthday, a curse which can only be broken by true love\u2019s kiss, Maleficent has a change of heart. As Aurora bonds with her and starts regularly visiting the Moors, the Princess meets Philip, a prince from a neighboring kingdom, and both become mildly attracted to each other. During that time, Maleficent realizes that she does not have the heart to hurt Aurora and unsuccessfully attempts to undo the curse, forgetting she stated “no power on earth” can do so. The curse\u2019s power beckons Aurora to the dungeon, where she pricks her finger and falls into a deep sleep. Hoping to save her, Prince Philip kisses the Princess but fails in resurrecting her. Tearful, hopeless, and in despair, Maleficent gently kisses Aurora\u2019s forehead and unexpectedly wakes the Princess. <\/p>\n\n\n\n Paradoxically, as the reader will come to realize, this plot perfectly illustrates the scenario that occurred in Piccolo v. Disney where the latter ambitiously attempted to throw out a wrongful death case from Florida courts and compel arbitration based on arbitration agreements embedded in its streaming subscription terms. (See Jeffrey J. Piccolo (Personal Representative of the Estate of Tangsuan) vs. Great Irish Pubs Florida, Inc., Raglan Road Irish Pub and Restaurant and Walt Disney Parks and Resorts U.S., Inc., Circuit Court of the Ninth Judicial Circuit, Orange County, Florida, CASE NO.: 2024-CA-001616-O<\/a>)<\/em>.<\/p>\n\n\n\n Once upon a time, in Orange County, Florida, the Piccolos set out for a family dinner together. On October 5, 2023, they went to Raglan Road Irish Pub \u2013 a cozy restaurant nestled within the Disney Springs dining complex. However, what was meant to be a warm family outing in the Sunshine State soon spiralled into the family\u2019s worst nightmare. Despite the Piccolos careful choice of a restaurant known for accommodating patrons with food allergies, Kanokporn Tangsuan, Jeffrey Piccolo\u2019s wife and doctor at NYU Langone hospital in Manhattan, sadly became a victim of the staff\u2019s unfortunate negligence and passed away after a severe allergic reaction.<\/p>\n\n\n\n Without delving into the heartbreaking details of the case<\/a>, Tangsuan tragically passed away from anaphylaxis, caused by elevated levels of dairy and nuts in her system. Following this tragic event, in February 2024, Jeffrey Piccolo, on behalf of his late wife\u2019s estate, filed a 19-page lawsuit<\/a> in Orange County, Florida, against Raglan Road Irish Pub and Walt Disney Parks and Resorts U.S. Inc. (WDPR), the latter being brought into the law suit on grounds of having the right to control the former. The complaint details the family\u2019s repeated conversations with their waiter about Tangsuan\u2019s nut and dairy allergies. As alleged, this issue was raised by the family upfront, who inquired about the safety of specific menu items, and had the server confirm, multiple times, with the chef that they could be made allergen-free.<\/p>\n\n\n\n In this wrongful death lawsuit, Jeffrey Piccolo is accusing both companies of negligence for preparing Tangsuan\u2019s food improperly and for failing to train their employees to guarantee food was made allergen-free as requested. He is seeking more than $50,000 in damages and trial by jury on all issues so triable.<\/p>\n\n\n\n <\/span><\/b><\/p><\/h2>\n\n\n\n Just like how Maleficent decided to curse the infant Princess Aurora without hesitation, WDPR decided to use one of its spells that it had cast on the Piccolos. Indeed, the plot took a different spin when, in late May, WDPR filed a motion asking the circuit court to throw away this wrongful death lawsuit and, instead, order Jeffrey Piccolo to arbitrate the case. A very bold move from the House of Mickey Mouse to defeat jurisdiction and stay proceedings. In asserting that the Estate of Kanokporn Tangsuan\u2019s wrongful death claim must be submitted to arbitration, WDPR relies on three documents allegedly agreed to by Jeffrey Piccolo in his individual capacity.<\/p>\n\n\n\n Firstly, WDPR submits that Jeffrey Piccolo created a Disney account through its Disney Plus website in November 2019. By clicking \u2018Agree & Continue\u2019, WDPR claims that Jeffrey Piccolo agreed to Disney\u2019s Subscriber Agreement which, in its Terms of Use, contains a binding arbitration clause. This clause \u2013 or first spell \u2013 reads as follows: \u201cAny dispute between you and us, except for small claims, is subject to class action waiver and must be resolved by individual binding arbitration.<\/em>\u201d<\/p>\n\n\n\n Secondly, WDPR explains that the Subscriber Agreement states that \u201cwhen you create a Disney+ or ESPN+ account, you also agree to the Walt Disney Company\u2019s Terms of Use, available at www.disneytermsofuse.com and at the end of this agreement which governs your use of other Disney Services<\/em>\u201d. Furthermore, Disney notes that the \u2018Terms of Use\u2019 include an arbitration clause in Section 7 \u2013 titled \u201cBinding Arbitration and Class Action Waiver\u201d \u2013 which applies to \u201call disputes\u201d including those involving \u201cThe Walt Disney Company or its affiliates\u201d. Thus, given that WDPR is an affiliate of The Walt Disney Company, the binding arbitration clause \u2013 or second spell \u2013 should apply to Tangsuan\u2019s Estate claim.<\/p>\n\n\n\n Finally, WDPR explains that, in September 2023, Jeffrey Piccolo also agreed to the \u2018My Disney Experience Terms and Conditions\u2019 and registered his late wife as his \u2018guest\u2019 when buying her a Disney EPCOT theme park ticket. A third, and final spell, that was cast on the Piccolos. These terms explain that \u201cby using the Site\/App or by clicking a box that states that you accept or agree to the My Disney Experience Terms and Conditions, you signify your agreement to these Terms for yourself and for all persons (including minors) for whom you are purchasing or otherwise securing benefits and\/or managing those benefits and entitlements such as tickets [\u2026] You represent that you have all necessary rights and consents to agree to these Terms on behalf of your Party<\/em>\u201d. Therefore, WDPR argues that the Piccolo family is barred from suing in state courts and obliged to arbitrate their claims.<\/p>\n\n\n\n In a nutshell, WDPR relies on<\/p>\n\n\n\n Just like in any Disney classic, the \u2018Hero\u2019 never goes down without a fight. Jeffrey Piccolo responded on August 2, 2024, in hopes of denying the Motion in its entirety, by firmly stating the WDPR\u2019s argument are \u201cfatally flawed\u201d.<\/p>\n\n\n\n Piccolo explains that, under the FAA, courts must compel arbitration upon a showing that: \u201c(1) a valid, written agreement to arbitrate exists; (2) an arbitrable issue exists; and (3) the right to arbitration has notbeen waived<\/em>.\u201d As an initial matter, Piccolo argues that WDPR has waived its alleged right to seek arbitration by filing its Answer without raising arbitration, in limine litis<\/em>, as an affirmative defense and by participating in merits discovery \u2013 having submitted two separate Requests for Copies under Rule 1.351(e).<\/p>\n\n\n\n Moreover, Piccolo argues that, even if WDPR had not waived its rights, it is attempting to enforce an agreement that it never signed against a party who also never signed. According to Piccolo, the plaintiff in this wrongful death case is Jeffrey Piccolo, as Personal Representative of the Estate of Kanokporn Tangsuan, not Jeffrey Piccolo in his individual capacity. Therefore, it is not plausible that when Jeffrey Piccolo, individually, allegedly signed himself up for a free trial of Disney Plus back in 2019 on his PlayStation or bought tickets that he never used in 2023, he somehow bound the non-existent, and non-signatory Estate of Kanokporn Tangsuan to an arbitration agreement buried within certain terms and conditions.For Piccolo, Disney\u2019s preposterous position is based on the \u201cincredible argument that any person who signs up for a Disney+ account, even free trials that are not extended beyond the trial period, will have forever waived the right to a jury trial enjoyed by them and any future Estate to which they are associated, and will instead have agreed (on behalf of other survivors and the estate itself) to arbitrate any and all disputes against any and all Disney entities and affiliates, no matter how far removed from use of the Disney+ streaming service, including personal injury and wrongful death claims<\/em>.\u201d (See Plaintiff\u2019s Response in Opposition to Disney\u2019s Motion to Compel Arbitration<\/a>, pages 4-6<\/em>).<\/p>\n\n\n\n Regarding the rather ambitious claim that the Estate of Kanokporn Tangsuan\u2019s wrongful death claim must be submitted to arbitration pursuant to the Disney Plus Subscriber Agreement, the Piccolos explicitly argue that there is simply no valid agreement to arbitrate any claims raised in this lawsuit. For the Piccolos, the Subscriber Agreement clearly indicates that Mr. Piccolo was only potentially agreeing to arbitrate claims concerning the Disney Plus streaming service. Therefore, the terms of the agreement, on its face, establish that there was no agreement to arbitrate \u2018injury claims\u2019 against other Disney entities.<\/p>\n\n\n\n As for the Disney Terms of Use, they submit that the arbitration provision therein is not valid because Jeffrey Piccolo had no actual or inquiry notice of the Disney Terms of Use. Accordingly, the latter constitute an unenforceable \u201cbrowsewrap\u201d agreement, as opposed to a \u201cclickwrap agreement\u201d, because it was not conspicuous enough to provide notice to consumers. <\/p>\n\n\n\n Furthermore, the Piccolos skillfully spotted that the provision in the \u2018Disney Terms of Use\u2019 is in conflict with the \u2018My Disney Experience Terms and Conditions\u2019 in a manner that renders it ambiguous. As their submission suggests, the former provides for arbitration of all disputes and requires the parties to submit to the jurisdiction of New York Courts while, in contrast, the latter does not contain an arbitration provision. Rather, it expressly contemplates that the parties may file lawsuits and requires those suits to be filed in Florida. Therefore, since the \u2018My Disney Experience Terms and Conditions\u2019 (which do not contain an arbitration clause) expressly \u201capply in addition to, and not in lieu of, the Disney Terms of Use\u201d, the Piccolos argue that they have complied with those terms by filing suit in Orange County, Florida.<\/p>\n\n\n\n Finally, to fight WDPR\u2019s claims and spells, the Piccolos fervently argued the inexistence of a valid arbitration agreement because the clauses upon which WDPR relies are simply \u2018unconscionable\u2019. According to Piccolo, the arbitration provisions that WDPR is seeking to enforce provide that arbitration will be administered by the JAMS Mediation, Arbitration and ADR Services in accordance with the JAMS Streamlined Arbitration Rules. The latter provides that the parties will only have 14 days to conduct discovery and Florida courts have held, in Prieto v. Healthcare and Retirement Corp. of America<\/em> [919 So. 2d 531, 533 (Fla. 3d DCA 2005)], that an arbitration agreement which restricts access to discovery necessary to prove the plaintiff\u2019s case was substantively unconscionable. Thus, this clause should be deemed invalid. <\/p>\n\n\n\n Everyone was eagerly anticipating the final battle scene, curious to see what other spells WDPR had in its arsenal but instead, an unexpected twist to the tale occurred. At first, Disney\u2019s official statement<\/a> was very blunt and explained that \u201c[w]e are deeply saddened by the family\u2019s loss and understand their grief. Given that this restaurant is neither owned nor operated by Disney, we are merely defending ourselves against the plaintiff\u2019s attorney\u2019s attempt to include us in their lawsuit against the restaurant<\/em>.\u201d<\/p>\n\n\n\n However, later in the litigation and in a Maleficent-like change of heart, Disney Experiences chairman Josh D\u2019Amaro told BBC<\/a> in an official statement that at Disney: \u201cwe 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\u2019ve decided to waive our right to arbitration and have the matter proceed in court<\/em>.\u201d In other terms, WDPR willingly decided to lift the curse and instead of continuing the fight, Disney channeled its inner Maleficent and decided that the matter can now be heard in court.<\/p>\n\n\n\n Unfortunately, in attempting to push the Piccolos claim into a confidential setting, WDPR succeeded only in creating the publicity and attention it likely wanted to avoid.<\/p>\n\n\n\n Arbitration agreements are usually upheld and it is very uncommon for a party to withdraw its request for arbitration instead of letting a judge decide. Indeed, the FAA, codified at 9 U.S.C. \u00a7\u00a7 1-16<\/a>, protects the integrity of many arbitration agreements by deeming them valid, irrevocable, and enforceable.<\/p>\n\n\n\n This is not the first time a corporate giant relied on the fine print in its agreements that consumers generally ignore to change the course of a legal action against it. For instance, in Airbnb, Inc. v. Rice<\/em> (138 Nev. Adv. Op. 65 (Sept. 29, 2022)), a wrongful death lawsuit was brought against Airbnb by the estate of a man who was killed at one of its rentals. The company pointed to the arbitration clause in the agreement the man had entered into when signing up for an Airbnb account, even though the deceased man had not rented the property where his death had occurred. This Nevada Supreme Court ruling in favor of Airbnb cited a unanimous 2018 ruling by the US Supreme Court, in Henry Schein, Inc. v. Archer & White Sales, Inc.<\/a>,<\/em> which confirmed that, under the FAA, \u201ca court has no power to determine the arbitrability of a dispute where the contract delegates the arbitrability question to an arbitrator, even if the argument that the arbitration agreement applies to the dispute is “wholly groundless”<\/em>.<\/p>\n\n\n\n Although WDPR\u2019s attempt to compel arbitration was a \u2018bit of a stretch\u2019 under the facts of the case, we wonder why did WDPR change stance and choose not to weaponize its subscribers terms. Indeed, we could have been in store for a precedent-setting case; one that would have seen a party compelled to arbitrate \u2018any\u2019 and \u2018all\u2019 disputes with its streaming service provider. In any case, the arbitration clauses that WDPR relied upon in their motion still exist on their various platforms which potentially put other people injured by Disney\u2019s negligence at risk of facing a similar legal challenge. While the fate of this lawsuit now will be decided in a court of law, this case highlights corporate responsibility and accountability, particularly how companies handle disputes and the rights of individuals to seek justice through the courts. The Piccolos dispute also brought to fore consumer awareness regarding streaming services agreements, which many customers tend to overlook, and how subscribing them can potentially impact their rights.<\/p>\n\n\n\n Just like the reader, we remain very eager to see the outcome of the case and whether the Piccolos will emerge victorious. Disney must have decided that the harm they were suffering in the public eye was greater than the risk of swinging for the fences with its Motion to compel arbitration. After all, as its slogan suggests, Disney should be the place \u201cWhere Dreams Come True,\u201d not a place where dreams come to unfortunately witness their demise.<\/p>\n\n\n\n In conclusion, for those less familiar with Disney’s classics, it’s important to note that in the 2014 live-action movie \u2018Maleficent\u2019 the character has a very different fate compared to the original 1959 \u2018Sleeping Beauty\u2019 animated film. In this new retelling, although she is initially defeated and captured after awakening the Princess, Maleficent does not die like before as she ultimately regains her power and is saved by Aurora. Whether the case ends in victory, defeat, or settlement, we\u2019ll all have to wait for the final scene and the curtain to fall.<\/p>\n\n\n\n ABOUT THE AUTHORS<\/strong><\/p>\n\n\n\n
Zyad Loutfi<\/strong>, \u00c9l\u00e8ve-avocat\u00a0at\u00a0Quinn Emanuel Urquhart & Sullivan LLP<\/a><\/strong>
Adel Al Beldjilali-Bekka\u00efri<\/strong>, Trainee at Quinn Emanuel Urquhart & Sullivan LLP<\/strong><\/a>\u00a0<\/p>\n\n\n\n
\n\n\n\nBackground<\/strong><\/strong><\/h2>\n\n\n\n
Disney\u2019s Maleficent-like Attempt to Compel Arbitration<\/strong>
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Piccolo\u2019s Ferocious Fight in the Florida Court<\/strong><\/h2>\n\n\n\n
Disney\u2019s Maleficent-like Change of Heart and the Piccolos Fairy Tale Ending<\/strong><\/h2>\n\n\n\n
Commentary and Conclusion<\/strong><\/h2>\n\n\n\n
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