ALEXA MASCARO—Earlier last month, Disney found itself in hot water for moving to dismiss a wrongful death suit filed on behalf of Kanokporn Tangsuan, an NYU doctor who suffered a fatal allergic reaction after dining at a Disney Springs restaurant in 2023.
The suit, brought by Tangsuan’s widower, alleges that Disney acted negligently by failing to accommodate Tangsuan’s severe nut and dairy allergies. The late doctor had decided on the Disney Springs restaurant because it advertised itself as allergen-friendly. After being assured by waitstaff that her food was safe, Tangsuan suffered anaphylaxis—caused by increased levels of nuts and dairy in her system—and passed away less than an hour later.
In addition to the negative headlines stemming from Tangsuan’s passing, Disney faced backlash due to the contentious strategy the company employed while defending the wrongful death claim. Specifically, in moving to dismiss the case, Disney claimed Tangsuan’s widower agreed to arbitrate all claims against the media conglomerate when he signed up for a one-month Disney+ trial and created an account on Disney’s website to buy the couple’s theme park tickets. Widespread public dissatisfaction in response to the decision presumably led the company to back-track, as Disney quickly filed a notice to withdraw its earlier motion.
The choice to reverse course was accompanied by an official statement from Josh D’Amaro, the Chairman of Disney Experiences, in which he laid out the motives behind the decision: “At Disney, we strive to put humanity above all other considerations…As such, we’ve decided to waive our right to arbitration and have the matter proceed in court” (emphasis added). It was the last line of this ostensibly altruistic resolution that struck some as odd.
While asserting that it would not be moving to arbitrate, Disney simultaneously maintained that it had the prerogative to enforce the mandatory arbitration provision had it wanted. This means that Disney believed it could force a wrongful death suit to arbitration—in effect, stripping the plaintiff of their Seventh Amendment right to trial by jury—because of an all-encompassing arbitration clause that was likely entered into without knowing and voluntary consent.
While it is unclear whether Disney would have prevailed on compelling arbitration, the situation serves as a bleak reminder of the power imbalance inherent in such provisions. Arbitration, a process that allows a neutral third party to make a binding decision on a dispute between two parties, disadvantages consumers for a myriad of reasons. First, forced arbitration pigeonholes consumers to a singular avenue toward recourse. Whereas consumers would typically have the full panoply of dispute resolution options, mandatory arbitration provisions eliminate those choices altogether.
Second, arbitration is a private process with limited options for appeal. Because arbitration proceedings are typically private, they allow for companies to keep information that is adverse to them out of the public eye. Moreover, the lack of a traditional appeal process means that those left with unfavorable results cannot have their decisions reviewed, as would typically be an option in court proceedings.
Third, studies have revealed that employees and consumers typically win less and receive less damages in arbitration than in court. Lastly, consumers are often unaware of the rights they have relinquished by assenting to terms and conditions that are ubiquitous prerequisites to buying any product or using any service.
A 2017 study by Deloitte revealed that 91% of people consent to terms and conditions without reading them, with this figure rising to 97% among younger audiences. However, even if consumers were better about reading the fine print, there is no guarantee that they would internalize what they are agreeing to. The dense legal jargon that forms contracts makes it difficult for the average consumer to fully understand the implications of such terms and conditions.
For that reason, it is important to raise awareness about the deleterious effect clauses that mandate arbitration can have on a consumer’s ability to seek recourse when wronged. It seems dystopian to think one can forfeit rights that form the bedrock of our constitutional guarantees without doing so knowingly, but that is the law.
The news surrounding the suit on behalf of Tangsuan should signal to consumers that reading the fine print may not be enough. To truly be protected as a consumer, one must actually understand the terms and conditions they are agreeing to every time they click “accept.”
