☐ By clicking, you are confirming that you have read, understood and agree to the terms and conditions.
Ahhhh, the ol’ “Terms & Conditions” checkbox. We’ve seen them, we’ve fast scrolled through 30 pages of single-spaced text, and we’ve checked them WITHOUT. READING. A. WORD.
But how important are they?
As a quick digression, the Seventh Amendment to the United States Constitution says:
“In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.”
Seems simple enough. We’ve got a basic constitutional right to a jury trial. Except that the legislatures, the courts, and special interests have been doing everything in their power to curtail that right since the beginning. One way they go about keeping decisions out of the hands of juries of your peers is to try to get cases heard by binding arbitration instead.
Which takes to the terms & conditions boxes.
Even though you have a right to trial by jury, that right can be waived or otherwise contracted away. Which is to say that you and someone you could later sue for something could have an agreement that any disputes will be handled in something other than a jury trial. It is not at all uncommon for such a clause to appear in the terms and conditions of any number of contracts.
But how far does it reach? The answer to that question is why the lead of this post features Mickey Mouse giving you the bird.
After Dr. Kanokporn Tangsuan died from a severe allergic reaction while dining at a Disney World restaurant, her widower filed a wrongful death lawsuit. Disney recently made news when it made a court filing laying out its argument that the case properly belongs in an arbitration proceeding and not a courtroom.
Their reasoning? Dr. Tangsuan’s husband, Jeffrey Piccolo, had agreed to it when he clicked on the terms & conditions of his Disney+ free trial in 2019 as well as when he bought the tickets for their Disney trip where his wife died.
The part that got the most press was the Disney+ argument. Probably because it is absurd. Even using very broad language (as many such contracts do), it seems pretty clear to this simple country lawyer that the terms are about the “Service,” which is clearly defined to be about the Disney+ subscription. Furthermore, even though the arbitration agreement defines “dispute” as “any clam, dispute, action, or other controversy, whether based on past, present, or future events, whether based in contract, tort, statute, or common law…”, it also references those as in relation to “the Services.” Another paragraph makes the arbitration agreement binding on related disputes involving the Walt Disney Company. So, that paragraph would seem on one to be broad by naming the parent company, but not really when it’s read in conjunction with the rest of the paragraph where it’s specifically talking about disputes between the subscriber and the service.
At any rate, bad press ain’t good for business. After getting wrecked in the media for its approach, a statement from Disney Parks chairman, Josh D’Amaro said that “[w]e’ve decided to waive our right to arbitration and have the matter proceed in court.” Which I find interesting. He didn’t say, “sorry for the lame legal argument by our attorneys.” He said, “we’re waiving our right.” So, even though Disney is rolling over for this particular claim, they still think they have the right to arbitration. I’d be on the look out in the future for this to rear its ugly head again.
A Similar Case Involving Uber Eats
The Disney case is not an isolated incident. Companies across various industries are increasingly using arbitration clauses in their terms and conditions to limit consumers’ rights to sue in court. A recent high-profile case involves Uber, where a couple injured in an accident with an Uber driver may be forced into arbitration due to their daughter’s previous Uber Eats order. This trend of ‘infinite arbitration clauses’ raises concerns about personal liberty and corporate accountability. As consumers, we must be aware that clicking ‘Agree’ on seemingly unrelated services could have far-reaching consequences on our legal rights in unforeseen circumstances.
Stay safe out there.