If the agreement at the time is anything like the current agreement, this is a serious misrepresentation to the court.
The terms do require Disney+ users to "agree to resolve, by binding individual arbitration as provided below, all Disputes" with some IP exceptions.
But "Disputes" is a term of art that "includes any claim, dispute, action, or other controversy, whether based on past, present, or future events, whether based in contract, tort, statute, or common law, between you and Disney concerning the Disney Products or this Agreement" (emphasis added).
What are the Disney Products? They are "certain websites, software, applications, content, products, and services in any media format or channel."
I don't see how you can be forced to resolve all disputes via arbitration. I could understand signing an agreement to first attempt arbitration (with timeouts and bounds set), but it feels like you shouldn't be able to fundamentally sign this right away. They could literally enter into indefinite arbitration if they wanted to.
I think this is a terrible use anyway:
1. The one month free trial contract was only valid during the one month, back in 2019.
2. The contract, even if it was still valid, was with the person who died, and not the family.
3. Due to Disney's claimed negligence, arbitration has become impossible, as they have now died.
If this is allowed to stand, it means that when visiting a Disney park, an employee could gun down hundreds of people, and they would have zero recourse. They could poison thousands of guests, and they would be stuck to resolution by arbitration, which is a process they entirely control.
If I'm understanding the article correctly, re: (2), the 'contract' was between Disney and the widower husband (Piccolo), not the deceased (Tangsuan). Disney claims he (Piccolo) must abide by Disney+ ToS and arbitrate while his defense argues he's a plaintiff for the deceased's estate and not representing himself.
> I don't see how you can be forced to resolve all disputes via arbitration.
Ostensibly, the claimant wasn’t forced but contracted to do so. The problem, of course, is that an EULA for TV streaming shouldn’t extend to every interaction one has with one’s counterparty. And of course contracts should be negotiated between equals, not imposed unilaterally. The shrinkwrap agreement should IMHO be eliminated: one should either trade under standard society-wide terms, or negotiate terms on a case-by-case basis.
> If this is allowed to stand, it means that when visiting a Disney park, an employee could gun down hundreds of people, and they would have zero recourse. They could poison thousands of guests, and they would be stuck to resolution by arbitration, which is a process they entirely control.
Well, criminal charges would still be possible. Remember, the criminal and civil systems are different.
And of course arbitration is not supposed to be completely controlled by one of the parties. It may be in fact, but it’s not supposed to be. When the arbitration is between equals, it’s probably pretty fair; when it’s unilateral, it may not be.
> And of course arbitration is not supposed to be completely controlled by one of the parties. It may be in fact, but it’s not supposed to be. When the arbitration is between equals, it’s probably pretty fair; when it’s unilateral, it may not be.
When one party demands arbitration and has the deeper pockets, it is likely to fund the arbitration process - it's unclear how fairness can be reached.
I have seen this play out with an insurance company in the UK. The insurer have offered to pay 25% of a vehicles market value after complete destruction, a value too low to buy any comparable vehicle. The only recourse is to offer quotes for similar vehicles to their 'arbitration team'. They then decide what is offered. If you remain unhappy and reject the offer you get nothing, there are no other options available. They offered a £50 'good will gesture' which was also rejected. There is an ombudsman, but they really don't care and side with the insurer, stating that £50 was a reasonable compensation.
I spit blood and feathers at any suggestion that an arbitration controlled by the company is not going to lead to corruption. It needs to be a truly unbiased third-party. I feel sorry for the family who have suffered such a loss, and now have an almighty uphill battle against Disney.
At worst Disney & its lawyers get hit with a 57.105 motion under Florida Law, if the plaintiff’s counsel files the safe harbor notice first.
No one is being disbarred for filing a motion to dismiss, even if the motion is found to be frivolous - which it might not be, even if the motion is denied.
They won’t get disbarred because it’s a single offense but misrepresenting the law to their client and the court is not their job. Trotting out this excuse for lawyers is like deploying the “maximize shareholder value” canard to excuse corporate misbehavior: not only wrong but guaranteed to encourage more abuse.
The terms do require Disney+ users to "agree to resolve, by binding individual arbitration as provided below, all Disputes" with some IP exceptions.
But "Disputes" is a term of art that "includes any claim, dispute, action, or other controversy, whether based on past, present, or future events, whether based in contract, tort, statute, or common law, between you and Disney concerning the Disney Products or this Agreement" (emphasis added).
What are the Disney Products? They are "certain websites, software, applications, content, products, and services in any media format or channel."
I hope the lawyers get sanctioned and disbarred.