The bug in the legal system is that by filing this motion/claim, Disney can only win.
In the unlikely best case, they get the case dismissed, but even in the most likely case that the motion is denied, they win by wearing down their opponent who has much more limited resources and is personally affected by the case dragging out, i.e. more likely to accept a (lower) settlement than without this tactic. The only downside is a tiny bit of legal costs.
Courts should be able to issue sanctions/extra damages for the use of such tactics. If using such a tactic turned the claim from "you killed this person negligently" to "you killed this person negligently, then willfully tried sleazy tricks to create additional suffering for the husband", and had the potential to double the award, companies would be much less eager to play this game.
In general I agree, except perhaps "Disney can only win.". They can lose PR; enough that the company might consider this an overall loss.
Their service is hospitality and the message they're sending here is very much inhospitable. It might turn into a meme, like "Cancel your Disney+ before visiting Disney IRL". It might make people hesitate and/or choose a different holiday destination. Etc.
Yes, except this person DID cancel her Disney+. More accurately, she never signed up for it, merely ran a free trial for a month in 2019. So the only possible way to avoid this, if Disney's argument was upheld, would be to have never interacted with Disney at all in any way.
>>. More accurately, she never signed up for it, merely ran a free trial for a month in 2019
It's actually not even that. The person who died had the free trial, and now Disney is being sued by her husband - and her husband has never had a Disney+ trial or any other service with such an agreement with them. So like the article says - Disney is trying to anforce an agreement that this person(the husband ) has never signed.
Your point is correct, but you've got it backward.
It was the husband who signed up for the free trial and bought tickets to Epcot.
Yet he is suing not on his own behalf, but on behalf of her estate, and she never entered into any such agreement.
You can think of it this way: Disney wronged the woman who died. She is the one who is owed damages. But since she's dead, her estate is owed damages. Her husband is the administrator of her estate, and he is suing on its behalf. So whatever agreements he has entered into in his individual capacity are irrelevant. It would be like trying to force arbitration on someone because their lawyer had a Disney+ subscription. That doesn't mean that they themselves entered into an agreement with Disney.
Forgive me if I'm being too grumpy, but giving others the gift of cheap AI output is a trend I'm beginning to see everywhere, and I really hope it doesn't become more popular.
I frequent a few programming communities, and right now a question like "How do people solve objects clipping into walls in isometric Godot games?" will have at least one person posting what chatGPT told them without even checking if it's relevant.
I guess my point is, proxying LLMs should be considered low-effort participation in most discussions.
> would be to have never interacted with Disney at all in any way
Yes, that is the PR risk. How much will Disney save in this one case, against the background meme of "if you ever watch anything Disney they are free to kill you" (that's not accurate, but memes rarely are).
IMO this is lawyers finding a local maximum that is bad for the company in general.
you say it's not accurate, but that's exactly what they are claiming here. worse, the woman they killed never even had Disney+. it's like they murder somebody, but the prosecutor once had Disney+ - boom, immunity.
"Never interacting with Disney to begin with" is now a goal of mine.
I occasionally watch something on Disney+ with the kids, but it's been awhile and Netflix has been a much better value. This kind of bullying makes me even more likely to cancel.
As far as their parks go, I have been extremely disappointed in the past. Six Flags may be a gross dumpster, but it's at least got a bunch of cool rides and is much cheaper. I was blown away by the mediocrity and datedness of Disney World. It's hot and humid there with no shade in the park. Who wants to sit in the sun for an hour to wait for a ride that's okay at best. I may take my kid once just so they can have that experience, but I'll probably take them someplace much better for 1/4 the cost instead.
I get it that some people really enjoy the parks and movies though and that's fine (to each their own).
>They can lose PR; enough that the company might consider this an overall loss.
When has that ever happened? I can't think of any time when a company lost enough PR to actually significantly affects its financials, much less put it out of business.
>When has that ever happened? I can't think of any time when a company lost enough PR to actually significantly affects its financials, much less put it out of business.
Exactly. VW shortened the lifespan of millions of Europeans with their Diesel gate and their finances are still solid. Ikea and Oil companies destroy the environment all the time and saw no financial hit from the PR issues. Nike, Apple and other major manufacturers are known to have used sweatshop labor and also saw no financial consequences.
Consumers just don't seem to care enough about the PR of $COMPANY as long as their contempt with how the $PRODUCT they bought works and serves them well.
2) There are substantial costs to avoiding all the brands known to be doing bad things, both in time and money, even if you could keep up with it.
3) Ok, so you’ve decided the cost to you and your family is worth it: congrats, your efforts harm you more than all these companies unless a whole bunch of other people do the same thing, and keep doing it (i.e. it’s a coordination problem)
There are reasons boycotts and such are all but entirely ineffective as a means of keeping megacorps in line, and it’s not really “consumers’” fault things are how they are. It’s structural.
We could stand to do a bit more raising of the profile of the externalities of such events.
The emissions regulations that VW was cheating to get around exist for the purpose of improving air quality. The improved air quality leads to less air quality induced health problems. Which in turn leads to longer, higher quality lives for people in Europe.
VW wasn't going around and directly pouring vials of poison into people's food like some kind of cartoon villain. But they absolutely were intentionally lying about the emissions of their vehicles, and those emissions absolutely have impacts to human health.
Its fair to say that VW intentially pushed the emissions of their vehicles over the recomended limit, which potentially affects the health of millions of people.
Saying VW directly shortened the lifespan of millions is just Hyperbole.
It's simply extending the line to the obvious next dot. It gets more uncomfortable to think about so we often don't want to, but what exactly do you think is the eventual outcome of those effects on the health of millions of people?
Think of the many factors that combine to determine when someone dies of "old age" or "natural causes". Think of the extra effort millions of bodies have spent dealing with the pollutants directly and the effects those pollutants have on those bodies.
Someone in VW's position could say, "well our pollutants were one cause among many" for any specific death. But they were part of the math. They contributed a share and lied about the size of it. They did indeed contribute to shortening the lifespan of millions of Europeans.
Take a piece of string and send it around a group of people. Tell each of them to cut a bit of the string off. Each person in the group has now participated in the shortening of the string. You can, completely accurately and honestly, say both of these sentences:
"Person 1 shortened the length of the string."
"Person 1 contributed to shortening the length of the string."
These statements are not in any way in conflict. You're creating a meaningless difference then insisting that I index on that difference. I refuse to play that game.
You seem to be playing it pretty well from where Im standing!
> insisting that I index on that difference
Looking back on my post, I havent insisted anything. I didnt even ask you anything. I just clarified my point.
It was your choice to retort.
> Take a piece of string and send it around a group of people.
Why do you insist on trying to reduce my opinion, which you do not understand, into metaphors which have no relevance?
> "Person 1 shortened the length of the string."
This statement implies a direct influence, ie Person 1 cut or broke the string, therefore directly shortened it.
> "Person 1 contributed to shortening the length of the string."
This statement is much more vague. What part did person 1 contribute? Did they make the scissors which cut the string? Did they mine the metal for thoise scissors? Did they hypnotise or manipulate the will of the person who did actually cut the string?
There is nuance here, and you dont seem to be understanding it at all.
Which part are you saying wasn't direct? The VW->emissions step, or the emissions->life shortening step?
I could understand arguing the first one, but I think the subterfuge makes it pretty much a direct action of VW.
I don't think there's a reasonable argument that the emissions didn't directly shorten lives, even if you think the precise number is impossible to calculate.
From your post above it sounds like you're arguing the emissions->life shortening step, and you haven't really given a good explanation why.
Its neither, I am questioning 'WV->Life Shortening' which some people seem to be insisting has happened. When you miss out the middle step, it becomes a different beast.
So you agree that VW directly caused the emissions, and the emissions directly caused the life shortening, you just think the combination shouldn't use the word "direct"?
Then I think you're in a pointless semantic argument rather than making a distinction about the real world.
> So you agree that VW directly caused the emissions, and the emissions directly caused the life shortening, you just think the combination shouldn't use the word "direct"?
No, I dont think any of that. Why are you trying to pin me down on my opinion about emissions killing people?
> I think you're in a pointless semantic argument
Yes, that is correct. This is an argument about language, and the nuance of the term 'contribute'. The difference between saying 'VW directly shortened millions of lives' and 'VW contributed to the shortening of millions of lives'.
I am not arguing anything about opinions of emissions or how harmful they are. Just peoples use of correct language.
You call the argument pointless, yet you are still replying!
> No, I dont think any of that. Why are you trying to pin me down on my opinion about emissions killing people?
You said neither, I thought you meant you disagree with neither, not "I'm phrasing it differently".
> You call the argument pointless, yet you are still replying!
That sentence started with a "then", and apparently the premise of that sentence wasn't correct in the first place.
Also it's perfectly reasonable to say "Oh, I thought the discussion was X, but it's Y, now I am leaving." "still replying" by making that final post is not foolishness.
> I am not arguing anything about opinions of emissions or how harmful they are. Just peoples use of correct language.
It sounds like you just hate the word "direct".
If enough people disagree with you about a word, then you're wrong. Words are defined by consensus.
That's all I have to say, I think. Sorry for trying to talk about the actual evidence since that's irrelevant to your argument.
-
Except, wait... the original post you replied to didn't even use the word "direct" even though half your posts are harping on that word. What is going on.
"Contributing" is still doing in this situation (unlike with the string). Why are you fine when that word is put in, but not fine when it's omitted? Especially when it's clear that nobody is blaming VW for all emissions. The contribution is implied.
Oh, there was supposed to be an "it" after "doing". As in, VW is causing life shortening in this situation, even if we use the word "contributing". In the string example many of the "contributors" are not doing string shortening themselves.
I tend to hit reply too early. That bad habit is completely unrelated to how concerned I am with your opinion.
I can't tell from your wording if you'd tell me to go outside if I didn't have that habit. But if you would, isn't that a generic putdown for responding to anything you say? My piece of advice is if you ever find yourself writing a comment that isn't worth responding to, the appropriate action is to not post it.
That's your own interpretation. Neither phrasing specifies the exact amount of contribution the subject had on the target. One phrasing is slightly more active in acknowledging that other contributions could exist, but still does not declare that other contributions must exist. The other phrasing does not preclude the potential of other things that also caused shortening.
No its not. The dictionary definition of 'contribute' is 'help to cause or bring about'. Emphasis on the 'help'.
> but still does not declare that other contributions must exist
By definiton of the word 'contribute', yes it does.
> One phrasing is slightly more active in acknowledging that other contributions could exist
No it isnt, by using the word 'contribute' you move the repsonsibility from directly being caused by that person, to being shared by multiple entites, each with different amounts of cause/blame. See the definition of 'contribute' above.
>Dude
>LMAO
Why am I arguing language nuance with somebody who talks like this?!
>Saying VW directly shortened the lifespan of millions is just Hyperbole.
Why? What's the difference when the outcome is the same? Your malicious actions still lead to deaths.
"I didn't directly murder someone, I just didn't clean the radioactive residue form his house because that would have cost me time and money so now he's dead."
Its not the same though is it. In your example there can be a cause of death identified as radiation poising which can be attributed to the residue in his house.
With the VW example, you cant quantify it at all. How much has it shortened peoples lives? 2 seconds? 10 years? nanoseconds?
Its not a direct correlation, theres no graph you can plot with emissions against length of life, and so claiming that there is a direct correlation is Hyperbole.
> With the VW example, you cant quantify it at all. How much has it shortened peoples lives? 2 seconds? 10 years? nanoseconds? Its not a direct correlation, theres no graph you can plot with emissions against length of life
> According to
new research published in Nature, NOX from diesel
vehicle exhaust was linked to 107,600 premature
deaths worldwide in 2015. Of these, ~38,000 are
attributable to excess NOX emissions.
Sounds like the graphs do exist. (Obviously VW is only a fraction of those specific numbers.)
We can argue about the extent of this contribution, and whether it was negligible, but not about if it actually happened.
(Unfortunately emissions are not the only culprit and a lot of particulate matter that has negative impact on overall population health in cities comes from brakes and tires but nobody figured a feasible way to deal with that yet.)
I don't pin this 100% on customers, because many people aren't informed and worse, it's often not just these single companies, it's all their major competitors doing exactly the same thing.
The issue is a lack of regulation and enforcement. We can't trust major companies to be good actors because capitalism does not reward honest actors. This is one purposes of government, to make the cost of being a bad actor high enough that companies behave.
It hurts my heart that all the examples above of companies hurting people or lying have very few consequences but bud light took a brand hit because they paid a trans person.
Not because they paid a trans person, but because they made them part of the marketing. A product mostly marketed to the very demographic that is transphobic. It’s not at all surprising this backfired.
Companies only started putting gay couples in commercials regularly years after gay marriage was legalized nationally.
Did you see Mulvaney's portrayal of "girlhood" though? Incredibly, ridiculously sexist. Let's not forget that the backlash against him has been for a variety of reasons, and one of them is his blatant misogyny.
The musk factor is starting to hurt them. I have friends who have told me they'd like a tesla but won't buy one because of Musk. I don't think they can name the CEO or senior leadership of another car brand.
I do expect my next car to be electric but I have no interest in a Tesla. My distrust of Musk and the culture he appears to create at companies he runs is a big factor in that view.
All we know is this: They virtue signal that they want a product but don’t buy it because they’ve been conditioned to dislike the company’s CEO. It’s likely that their tribe has all been conditioned in this way so the virtue signaling would be well received and elicit social approval.
I don’t think that makes them good or bad people, per se. I’m not here to lay down a judgement. It is what it is.
> because they’ve been conditioned to dislike the company’s CEO
You're rather taking the agency out of these folks' hands, are you not? It seems entirely likely that they could have independently came to the conclusion to dislike the company's CEO without the need to be "conditioned" by some external narrative.
According to you, when are they allowed to want an electric vehicle but not want a Tesla? Do they have to buy a Tesla no matter how much they dislike the thought of giving their money to someone they dislike?
Arguably Crowdstrike's loss was due to a flaw in their product rather than PR.
Disney's product (though not their core, I would argue) allegedly killed this poor woman - however it is the lawyers' behaviour, not the death itself, that is an additional PR liability for Disney; death from an allergy is tragic, but could have potentially happened at any restaurant in the country. Only Disney (and a select few other large corps) could pull this particular bad act in defence.
As an aside, the entire line of argument from Disney is an absurd legal fiction. No reasonable person reads terms and conditions, and so they should not be bound by the terms. I hold a weak hope that this case is bad PR for the practice as a whole that raises the profile of this injustice.
Disney own the mall, where a resturant chain rented a unit from them. The mall is free to enter and does not require buying a ticket from Disney. The 3rd party resturant hired the staff, made the menu, cooked the food and served the guests. Nothing to do with Disney at all.
The only part disney has in it is they published the restuarants menu on the malls website, which reads 'Allergen Free'.
> I can't think of any time when a company lost enough PR to actually significantly affects its financials
It just have to affect enough to offset the cost of the lawsuit (which probably won't be much because they probably do have plenty of in-house lawyers) + the estimated cost of future lawsuits that might come their way if they appear to be "soft" and/or set precedence.
They just made the front page of the BBC News website. I think we can safely assume that a lot of people are going to hear about this one.
How many future lawsuits about allegedly killing someone by failing to properly take into account their medical conditions after repeated warnings are Disney going to face? If the answer is greater than zero then it seems they have bigger problems than whether they can move this particular legal action to arbitration.
Ah no, their argument is because she signed up for a one-month free trial of Disney+ in 2019, she agreed to arbitration for her death in 2023. So by their metric it doesn't matter if you cancel, you're still bound to that if you visit Disney IRL.
Hoping that journalists pick up on cases like these and spread the word wide enough is... optimistic, to say the least.
A much better solution is to build incentives into the legal system, like tgsovlerkhgsel suggested. The problem isn't that bad actors abuse the system, the problem is that the system allows bad actors to abuse it.
"Disney claims Piccolo reportedly agreed to this in 2019 when signing up for a one-month free trial of the streaming service on his PlayStation console."
On the contrary, it seems extremely valuable to Disney to be able to force all disputes into individual binding arbitration rather than having to go through the courts.
On the third hand, it's debatable if anything on Disney+ is of any value either, so it could be argued that the deceased didn't get any value and isn't bound by the agreement.
(Yes, yes, I know that's not what you mean, nor is it what "value" means in a legal sense. IANAL, obviously)
That $50K figure wasn't mentioned in the article above. Where did you see it?
I'm surprised that the figure would be so low, both because wrongful death claims are usually 6- or 7-figure amounts, and also because she was a NYC doctor with much higher future earnings potential than the average person.
Edit: I see in a previous article on wdwnt.com that "Piccolo is seeking damages in excess of $50,000 under the Florida Wrongful Death Act." That doesn't mean, though, that he's seeking only $50K. I believe it means that he only needs to disclose at this point that the damages he's seeking are at least $50K, but could be much higher.
You mean if they killed your wife you wouldn't sue now, because you remember that you have tried out Disney+ once?
I don't think this scares anyone of suing Disney. If anything, it scares people away from visiting Disney restaurants and subscribing to Disney products.
A good portion of HN already knows. Disney+ is struggling as it is. Giving people one more reason not to sign up is not good marketing.
Losing 0.1% market share in case of Disney is probably worth more than the whole lawsuit.
Is this financial outlook posted anywhere digestible (ie not investor reports). I find it wild that it is not profitable.
Video streaming is not cheap, but at their scale, they can negotiate the best peering deals or setup edge boxes a la Netflix or YouTube. Then again, maybe it is their core audience which has a different usage pattern from adults. I might watch one show a night. A child might stream for 12 hours a day.
Unless Disney went on a spending spree and bought a big number of new movies+shows to publish on the platform, I am surprised. Disney bought Hulu- they could piggy back off of all that existing infrastructure.
> Is this financial outlook posted anywhere digestible (ie not investor reports).
I... have no idea.
> I find it wild that it is not profitable.
The news was that it is profitable now, and sooner than expected.
> Unless Disney went on a spending spree and bought a big number of new movies+shows to publish on the platform, I am surprised.
They did—they've had a number of Disney+ originals. And the streaming rights for Bluey probably wasn't cheap, given its popularity (and iirc it alone is like 25% of their streaming traffic).
I've got a hunch that the "bug in the legal system" is forced arbitration. I have zero actual experience here, but my general feeling is that arbitration rarely works out to the benefit of the plaintiff. Or, put another way, arbitration always benefits large corporations, like Disney. Is there any truth to that?
I would assume that lawyer companies might want to take this on without charging the person just because the potential upside of winning the lawsuit or settling it is so big. I agree with the general case that the legal system is really not accessible to everyone though ofc
idk, to me it seems like no matter what this is a lose/lose situation for disney.
either way it's bad press, which granted doesn't mean much in the long run
assuming the motion to dismiss is denied and it moves forward, regardless of which way it is eventually ruled, doesn't this eventually open it up for federal courts to rule all forced arbitration agreements in T&C's void?
(or more likely assuming they rule against disney, limit them to less severe crimes)
though that the widow is willing/able to move forward with appeals process, the latter of which likely won't be possible without some civil rights activists group stepping in to provide pro bono legal assistance
a settlement seems unlikely, since the widow only went forward with this case because Disney refused a 50k settlement, the cheap bastards. They are almost certainly spending more on lawyer fees than it would have cost them to settle this out of court
Hamlet might have had a point. This feels very like a-moral application of years of legal training.
On this basis, any transactions, of any nature which come with an Implied contract acceptance are going to be superseded by words which enable get-out-of-jail-free for all parent, associated, restructured companies, forever.
Watch out when you sign the hotel bill. You just promised to give your body on death to the parent company's medical school.
I doubt it's that simple but you would hope the justice system is going to tear this legal theory a new exit hole and not wash their hands first. Specificity is everything in a contract. Sweeping terms, perpetual licence would be a nightmare.
Paul Vixie notoriously included some text in an IETF draft which was of the "your first born is given to satan" type and called out all the "I have read the draft" people in a working group. Fair call. I hadn't read the draft so my first born was safe.
In EU you have regulation 93/13/EEG. Power to the consumer.
It is codified into the law of every member state, but might differ on some implementation details. For instance, in the Netherlands forced arbitration can only exists if it fair and not burdensome, and disputes can still be taken to state court. Also these clauses cannot be applied for totally different disputes (like restaurant vs streaming service like in this case).
Contract law as a whole has a major flaw where the vast majority of consumers are entering into contracts they cannot provide informed consent to. To call these consensual contracts is to reduce consent to a saying yes even if one does not understand what they agree to, which is a standard for consent that is invalid in any other application.
I know binding arbitration is the new hotness, but it seems unlikely this is the first time a company has tried to link a generic “absolved-from-everything” clause to an unrelated incident.
Binding arbitration WAS the new hotness. Some companies have learned that at scale it's a nightmare. Works for one case, falls over for 10,000 who refuse to bind to a single case and pursue the action, at your company cost.
There is a growing trend of companies inserting "mass arbitration" or "coordinated filing" clauses into their contracts. It isn't clear if these will be enforceable.
The arbitration providers (AAA, JAMS, etc.) have also started implementing their own "mass arbitration" provisions. In some cases even providing subscription bulk pricing.
Wow, the example on that page is brilliant. To quote:
> For instance, in Uber Technologies Inc v Heller (2020) the Supreme Court of Canada found an arbitration clause requiring gig workers in Ontario to litigate before the Dutch International Chamber of Commerce was unconscionable and so void.
Up next proof based automated arbitration. If input legal argument identifies case, automated verdict. Heard: only new arguments for viability on changing,creating a new proof.
It wasn’t too long ago I began to understand that lawyers are just hackers, but instead of computers they hack the law. For some, hacking the law is a game - to the point where they can lose sight of the humanity intrinsic in law and simply try to penetrate through the vulnerabilities while seeking a “win”.
This is mostly untrue and essentially the point of judges. A judge's role is to prevent people using ridiculous loopholes or misinterpretations of a law.
The judge can and likely will strike this down, but the damage has been done by that point (delay the procedure and wear the very human opponent down) and I doubt there will be meaningful consequences or compensation for trying.
I believe this is a US case, so the free citizens of this wonderful democratic country can just vote better lawmakers into their parliament at the next election.
At least the lawmakers in both of our legislative bodies are democratically elected, unlike the UK which somehow still has hereditary positions in their government in the year 2024.
Don't forget that the UK is one of only two countries in the world that has dedicated positions (26 Lords Spiritual) in their government for members of the state religion. The other country is Iran.
Most of our lawmakers are lawyers, for who is more qualified to write laws? They write laws that serve the interests of their colleagues. Trust the experts.
I think parent meant that you cannot hack the law because judge will see it and tell you to go away.
But I do agree judges are hackable too. It is more hassle to do it right and I hope stupid attempts from Disney will be met with some kind of repercussions.
Ah, I see. But I also think that sircastor's point when they said "hackers" was not that lawyers can bypass the intent of the law with impunity. Rather, I think the point was that lawyers will frequently attempt to interpret, use, and even abuse both the letter and the intent of the law in clever ways in order to achieve their goals on behalf of their clients.
In the US, if you don’t have money, legal recourse is essentially unavailable to you. Sometimes even if you do have money, finding a lawyer who specializes in your need is often impossible.
Imagine if you had to pay, as a victim, for the criminal prosecution of the perpetrators. And find a lawyer who handled “just simple battery” and not only murders.
My spouse and I are dealing with this now. It’s awful not being able to get justice.
While it might not be loopholes per se, but to disagree that current bench has grabbed the wheel and jerked hard is undeniable and you loose credibility yourself. I'm sorry you think semi-emotional pissed off commenting from someone that is very much IANAL, but it doesn't mean the actual subject isn't wrong. Just looking at it from an ethics viewpoint, they've made a mockery of everything they're supposed to stand for. But of course you'll just try to claim your comments are so much more well thought out and we can all try a little harder to be you.
You are appealing to emotion and reciting a political argument to make a professional ethics claim. I think SCOTUS isnt going great too. Doesn't have anything to do with how likely it is a motion like this survives or the legal principle being discussed.
True, SCOTUS hasn't been using ridiculous loopholes in a few decisions recently. What legal professionals are saying is that they have simply ignored the explicit text and spirit of several laws or the constitution in a few recent decisions, particularly their presidential immunity case.
If a bunch of lawyers wanted to complain about the general usability of software and how it impacts their lives, or complained about the fact that the engineers seem to be maliciously breaking previous conventions, that’d make sense. Sure, they don’t know much about file systems, but they would rightly be annoyed if we suddenly decided to break precedent and take the floppy-disk icon to mean “I’ve backed up the file to a floppy disk so it is ok to delete the local copy and close the program.”
> This is the 2nd HN legal discussion I'm facepalming at in 24 hours. I can't help wondering if the flippant way HN generally discusses law would hold if there was a legal site that tried opining on software engineering. It seems to me an irrational approach that doesn't hold for other subjects[1], and is just unconsidered.
Hey there. I very much am not fond of citing the site guidelines normally; I understand people get worked up about stuff they feel is completely off-base. But given that I was one of the participants in the previous discussion that apparently made you similarly facepalm yesterday, and that I was similarly left clueless as to what flaws you saw in the actual merits of the arguments you were expressing your disdain at, I would suggest taking at least this one guideline to heart:
"Please don't sneer, including at the rest of the community."
If you feel people are misinformed on some topic, please try to enlighten them with thoughtful explanations, instead of just expressing scorn and facepalming. It's not that people can't handle the scorn; it's just that it's unhelpful and unconstructive -- it certainly won't help anyone who is Wrong On The Internet become more correct.
Facepalming isn't sneering -- in that loose of a definition, the above post itself is sneering.
You are misrepresenting the thread: you made a reply demanding I enumerate any legal professionals who had their careers ruined due to parallel reconstruction, in response to me answering someone's question about why the 5th circuit decision yesterday mattered in practice.
You also didn't attempt to follow-up at all, you weren't doing earnest inquiry, there wasn't a crowd of people. Just you, bringing up an unrelated topic to police me answering someone's question, via agreeing with them that it can still happen mechanically, but it won't in practice, because police / warrant judge / tech company / DA chain is diffuse enough that they can't effectively collude to hide from the trial judge they used a geofencing warrant.
You've replied here a few times, as I note in my reply to one of the others: Nothing from me will be good enough for you on this topic, I'm afraid. I'm sorry I can't meet your expectations, I recognize that it is on me, not you. You read my posts as dishonest personal attacks, and its due to my cocksure verbiage coupled to my inability to definitively rule out the possibilities you raise.
The "equivalent" you mention is more like the opposite rather than the equivalent. It's making a sweeping generalization about millions of software engineers using 1 counterexample pertaining to one specific company, completely ignoring the impact the millions of other people have had through that practice. Extrapolating from a highly-non-random team of (say) ~100 engineers to a population of 4+ million is just a baseless thing to do.
SCOTUS is the exact opposite of this. It has a whopping 9 members, all of whom directly influence every single decision -- which is published publicly. There is no other member of the population to extrapolate to (vs. the millions in the SWE case); you just have to extrapolate temporally... for which you have plenty of history to base things on. Making sweeping generalizations about how the majority of them operate is as close to the exact opposite of baseless as it could possibly be.
Maybe you're right regardless and the parent is "not even wrong" nonetheless; I'm not opining on that conclusion one way or the other. I'm just saying your attempt at an analogy arguing for that is very much not making a case for it.
Nothing from me will be good enough for you on this topic, I'm afraid. I'm sorry I can't meet your expectations, I recognize that it is on me, not you.
n.b. for reader so it's clear I'm being earnest in my exit, not passive-aggressive: Yesterday, we disagreed on whether "parallel construction happens" obviously shows that it is meaningless the 5th circuit said geofencing warrants violate principle of presumed privacy. This was important because given parallel construction happens, I cannot say that it is unlikely that the tech companies, judges, DA, and cops will collude to continue serving geofencing warrants, responding to them, and using them for evidence, hide it from the court and defendant, and use parallel construction to nail them.
‘Loophole’ is another way of saying, ‘the law as written.’ The job of judges is to apply the law as written, not the law as they wish it would be.
I think that in general the U.S. Supreme Court’s recent decisions have been misinterpreted in the media, and far less ridiculous than, say, Wickard v. Fillburn or Reynolds v. Simms.
> The job of judges is to apply the law as written
well, thank goodness we've never had an activist court so that the phrase activist court had never been used before. What a wonderful world it must be that you think we live, unfortunately for me, that's not the world we live in. The very fact that each and everyone of those judges manipulate the Senate swearing that precedence is important and their impartiality prevents them from prejuding any hypothetical case being posed in their questioning are just words.
Is that really the case? Judges shut down some loopholes or 'hacks', but then others are allowed as being perfectly acceptable. The rational that decides when one is allowed and one is not seems to be a second level to the hacking. You can't just exploit the law, but find a way to ensure the exploitation is ruled valid.
Given judges are people, it does make it more 'squishy' than things on the tech side. Hacks have to appear clever but not insulting, and sometimes you have to fish for the right judge or court to support you, but that is all just the social engineering part of the hacking.
Just wait till you learn that law isn’t really law. I once worked on an OSS project for 8 municipalities to handle employee work related driving. The Danish tax law on the area is short and the simplest law text I’ve ever read, and we implemented it as such. Only to find out that the 8 cities interpreted this short piece or law in more than 8 different ways. Yes, even within the same admin they didn’t agree on how it should be interpreted. Some of the lawyers even got in heated discussions because they felt the other were breaking the law.
Anyway it wasn’t till later in the process where one of the lawyers who didn’t seem to have a whole lot of fucks to give explained it to me at the coffee machine. Basically our tax agency decides which interpretation is correct, but you don’t actually have to be correct until they directly tell you that you’re wrong. Which often won’t ever happen as virtually every organisation in the country handles employee driving and there are only five members of the tax agency doing check ups.
I think this is why lots of software projects fail - not because they are wrong - but it is just not what people want (and people might want things that are not according to the law ;) ). Then if it rubs the wrong way people who are in power then even if your project is technically right it gets canned and they blame developers on not delivering :(
I can see it in business software I work on. Interesting part is "required fields", someone makes 10-20 fields required on a form to fill in - but then people start complaining it takes too much time and why they have to fill in those fields and managers of those people come over complaining that software sucks ... well, great but we did not make the requirements, that was company/customer that wanted that.
We incorporated all the different ways they wanted as feature flagged options. Then it was very easy to remove them when they asked us to do that.
I get where you come from though. What we tend to do is to stage/gate things so that different teams have different required fields. Sometimes the same team depending on the process. Sometimes all the fields are optional until the “status” of a project needs to go forward, so that they can create a project with very little info but can’t actually pass it on to the next team until they have the required data.
Of course it’s not exactly a magical solution to angry managers and internal corporate politics but it helped us.
Magical solution would be filling in data from open sources or from that customer CRM. But it is question who will pay for that - we as SaaS don’t want to invest in what single customer uses. Customer expects we do it within their SaaS subscription. End result is that it sucks for people on the ground using it having to copy over data.
Sounds like your software, if programmed the way you wanted, would have unified it all to one single interpretation of the law. Then you would have put a few lawyers out of work… No wonder they shot it down!
Technically there is only one. Our tax agency happened to actually audit one city, and then all the others after it was revealed that the first one did indeed break the law.
I heard an interesting perspective from Alan Dershowitz (one of the prominent lawyers on the OJ Simpson case) that the trial system is fundamentally adversarial, and that accepting this quality is critical to its proper functioning.
Basically within the scope of the legal rules the system is a prisoners dilemma with respect to honesty. If the defense is completely honest but the prosecution isn’t, then an innocent man may go to jail, and vice versa.
The system has no way to enforce honesty, so it is set up in a way that honesty isn’t required. In a system where honesty isn’t required, being honest is basically illogical.
If we want that to change we need a way to detect and enforce honesty in a trial system. I think that is an impossible goal.
It's also for the cred. In legal circles, the first lawyer to do something enters l337 status. You think the legal team for Trump are doing it for the money he's going to not pay them? Hellz naw! Their names will be written about from here to eternity.
A lawyer friend back in law school heard that people who go into law are disproportionately psychopaths seeking the ability to manipulate society and power over people for personal benefit.
They tested it by somehow sneaking in psychopath test questions to other law students (without them knowing), who “passed” (not in a good way).
This is anecdata, but I found it convincingly told. I wonder whether a proper study would assess it (having doubts that would be allowed).
The argument in the legal papers is that access to the park (and access to the restaurant website that claimed that the food that caused the lethal anafilaxis contained no allergens) was purchased through the Disney+ account. They also claim that the ticket purchase terms of use explicitly say that they are in addition to the Disney+ account terms of use.
I have no idea of this is true, but if it is, it might be more likely than it appears at first for this motion to succeed. At least there is some direct connection between the Disney+ account and the restaurant, it's not just that the husband happens to be Disney+ subscriber who wen to this restaurant.
This is quite horrible precedent though if physical injuries of this kind can be covered by a checkbox you clicked without reading on a website somewhere two years before.
Disney Springs is a shopping mall though. You don't need a ticket to visit. It's also a stretch to claim one agreed to certain terms of service by merely visiting a website.
Indeed. The restaurant is operated by Great Irish Pubs Florida Inc, as noted in the lawsuit filings (Disney and GIPF are listed as separate defendants).
They probably did, it’s just not newsworthy. They generally give as many arguments as they can in support of a motion they just need one to work, but the news is only interested in what’s surprising, not reporting on the trial.
They did. Their answer to the lawsuit advances that argument. This is a separate motion to stay the lawsuit proceedings and refer it to arbitration per the terms they claim were agreed to.
Or put another way this motion isn’t claiming they aren’t liable because of the agreement to arbitration, they’re arguing that the venue is incorrect based on that agreement. The motion is for a stay of proceedings pending the arbitration.
Edit:
In fact the plaintiffs answer to this motion probably illustrates why this motion was filed in the first place. If you have and arbitration clause but you participate in a lawsuit voluntarily, the courts view this as waiving your right to arbitration. Presumably this is to protect against a case where a side engages in a lawsuit and seeing that it’s going badly for them, tries to have it switched to arbitration later. In order to have arbitration at all, they have to start by arguing for arbitration before committing too far into a court case
No, though maybe there is a reasonable assumption they enforce more oversight on tenants than a typical mall would. They do publish the restaurant menu on their website (including allergen info) and you can make reservations through their app. But the restaurant is ultimately a tenant operated by someone else in Disney's free to enter outdoor shopping mall. The original source of the incorrect info was definitely the restaurant, and the restaurant is also the one that doubled down on the incorrect info when the woman asked IRL. The main reason to sue Disney here is they're much richer than a Florida Irish pub chain.
You're right, I didn't realize that from the court docs. The tickets are just as much unrelated as the video streaming, this is just as absurd as it appeared on its face...
The plaintiff is arguing an equally absurd notion, that because they are suing on behalf of the estate, the estate never signed up for Disney+ because it didn't exist before the death.
So you know, it's all absurdity vs absurdity.
The reasonable human thing would be to say that an autosigned agreement should have a higher bar on terms and in particar no provision in it can be valid for irrelevant things to the immediate service at hand. (Several others have made the same conclusion.)
Found out in the meantime that I was wrong - the tickets are not for this mall and have just as little to do with the case as Disney+ video. Disney's claim is just that absurd...
This defense is absurd, but also there are no tickets for the mall and Disney doesn't own most of the stores/restaurants in the mall. The restaurant in question is a tenant and the company that owns it is also being sued.
But here's my counterargument: if I buy someone a ticket to a concert, then are they bound to the terms I agreed, including in relation to harm to them caused by (alleged) supplier negligence? I'd argue that they have a claim in tort, not contract, and therefore the terms of my contract with the supplier are not relevant.
A colleague of mine has lived in the USA for years. When visiting the local office here he commented, paraphrased "the craziest thing there is that at any given time you can make a tiny mistake, and the rest of your life is messed up completely". I think ruining random individuals' lives is not a sign of a good legal system. There are some other systems that try to avoid that more, though of course that still happens, and there are some things to be discussed on what kind of contracts are legal etc. There are of course different legal traditions in the world and so on too, in the bigger picture, but still, it seems so disastrous to the individual looking from outside.
I think a good faith interpretation is that the "mistake" was having accepted the terms of use of Disney+. Not that it was really a mistake, the system is just rigged and they'd have found another argument if not this one.
It’s more interesting that, I’m assuming, they categorize mistakes by the nature of the error and not the results of the error. Not checking your blind spot on an empty road is a tiny mistake. Not checking your blind spot causing a bus driver to swerve to avoid a collision, but the swerve resulted in the bus crashing into a petrol truck leading to a massive fire and dozens of dead school children is not a tiny mistake.
our legal system was built with the assumptions that there would never be any actively malevolent attorneys representing clients, or actively malevolent judges, assumptions that are clearly very wrong.
and now we have a problem, because until those individuals have a very long, very provable track record of malevolence, there is little that can be done to combat them.
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.
Or whether having ever done business with Tesla prevents one from suing Tesla if someone else’s autopiloting car hits them.
Presumably a sensible court would hold that no possible interpretation of a contract affects a lawsuit unrelated to the scope of the product or services provided under that contract.
I stopped the job application process to a well known car maker as a software engineer about a decade ago because the application, to the best of my memory at this time, included an arbitration clause that seemed to me to be very broad. Because of that arbitration clause I have not considered applying to them for more than a decade.
If you have a Twitter account, you agree to arbitration if someone drives their Tesla, on auto pilot, into your bedroom. Damages are limited to your Twitter subscription fee, or $1.
Given that other companies have self driving cars operating (but not for sale) today (I've taken rides in them).
I think Tesla might have to accept they need to use more sensors, and maybe even licence someone else's tech but Tesla will not accept being the only "luxury" automaker not offering self driving.
If this decision goes through, and you've ordered a Waymo through your Google account, and that Waymo car, say, hits you as it's parking - yes, likely the Google account terms of service would be found to apply. Which is insane, but such is a rigidly contractualistic society.
While Disney is indeed trying to get this dismissed as described, I think it is also worth noting that the restaurant in question is not actually owned by Disney. Disney is the landlord.
However the plaintiff is suing Disney on the grounds that the menu of the restaurant was published on Disney's website, and that within this menu was a claim that the restaurant is "allergen-free". But given that it does not seem like Disney produced this menu (only re-published it on behalf of the lessee), that seems like very tenuous grounds on which to sue Disney.
By filing this motion to dismiss, Disney is saying "if that connection is enough basis to sue us, then the pre-existing contract we have with the plaintiff should be enough to dismiss".
I agree with other commenters in this thread that we do not want to set the precedent that a dismissal on these grounds would create, but at the same time I think the plaintiff suing Disney in the first place is overly litigious.
That's disingenuous. Menu being on Disney's website makes Disney more than a landlord, more like a service provider. Is Disney responsible for what's on its site or not? What if the menu had some hate speech or terrorism?
Disney Springs is a mall. Most malls re-publish menus and other relevant materials on behalf of their lessees on their website for the benefit and convenience of the consumer.
The idea that this act is somehow an endorsement of said materials is what is disingenuous. Nowhere does Disney claim that they have validated the menu as correct, and I personally don't think it is reasonable for someone to imply that they are doing so. If the restaurant is liable due to misrepresentations they made in their menu, they made those same misrepresentations to Disney as much as to the plaintiff.
Even if you do think they are less landlord and more "service provider", that doesn't matter much either, given Section 230 of the CDA. Service providers are indeed not liable for hate speech and "terrorism" created by 3rd parties.
On top of all that, finding Disney at fault on account of publishing a menu also requires that the restaurant is actually at fault in the first place, which has not been demonstrated.
Usually sites redirect you to another site with a modal heavily disclaiming that they are in any way related or responsible for content. If Disney did not do that and it's on their site then sure they use the CDA backstop if they can demonstrate they are not the source of the menu. Why are you certain the menu isn't co-developed or branded in some way though? I'm not sure why to even bring up the Disney+ user agreement if it were so clearcut, especially as it engages at the level of presuming the service is indeed a Disney one. Isn't it curious?
That's a fair point. I looked at the websites of some other malls and it does seem like Disney has gone "above and beyond" to re-publish the menu in its entirety on their website, where other malls would just link to the lessee's website for that purpose.
However, I have now checked the Wayback Machine to see what the website looked like[1] in September 2023 (before the death in October 2023), and honestly even if Disney themselves produced this menu content (which does not seem to be what the plaintiff is claiming), then it still feels like the plaintiff has misrepresented what was on this website. Specifically the plaintiff says that the menu claimed items were "allergen-free", when in actuality the disclaimer specifically says the restaurant does not claim that.
Copying the relevant section from the end of the menu:
> About our allergy-friendly menu items: Guests may consult with a chef or special diets trained Cast Member before placing an order. We use reasonable efforts in our sourcing, preparation and handling procedures to avoid the introduction of the named allergens into allergy-friendly menu choices. While we take steps to prevent cross-contact, we do not have separate allergy-friendly kitchens and are unable to guarantee that a menu item is completely free of allergens. Allergy-friendly offerings are reliant on supplier ingredient labels. We cannot guarantee the accuracy of the contents of each food item. Allergen advisory statements (e.g., "may contain") are not regulated and therefore not taken into consideration when developing allergy-friendly meals. It is ultimately our Guests' discretion to make an informed choice based upon their individual dietary needs.
> Menu items and prices are subject to change without notice.
> * Consuming raw or undercooked meats, poultry, seafood, shellfish, or eggs may increase your risk of foodborne illness.
> Our plant-based menu items are made without animal meat, dairy, eggs and honey.
> then it still feels like the plaintiff has misrepresented what was on this website. Specifically the plaintiff says that the menu claimed items were "allergen-free", when in actuality the disclaimer specifically says the restaurant does not claim that.
Well, while the website definitely puts a lot of distance on allergen-free; if you can't offer a food allergen-free then you shouldn't. Same as if you can't take the bones out of a chicken wing; don't offer boneless wings.
However, if you go to the restaurant in-person and you ask the server who asks the chef and they both say it can be done allergen-free on multiple requests I think it's safe to safe that the website's disclaimer is overriden. Which is what the lawsuit claims [1] (I wish I could get a courtlistener link but I had no success [2]).
Sure that overrides the disclaimer for the restaurant, and I'm inclined to agree with you there because every restaurant has some disclaimer like this that if enforced would make any "allergen-free" claims worthless everywhere.
But that would still make Disney less liable, because the in person conversation with staff/chef has nothing to do with Disney here.
Although it is interesting that the restaurants operated by others still use the "cast member" language. I do think Disney tries to have a bit of an illusion that everything on property including Disney springs is them. I still wouldn't consider it enough legally here but there is at least an argument about assumption of oversight.
It's also important to note that Disney is saying that the plaintiff bought the Disneyland tickets through this Disney+ account, and that the purchase agreement re-iterated the general Disney+ terms as well. So the connection isn't "he happened to be a subscriber of Disney's streaming service" as the original article makes it sound. It's "he clicked agree on these terms when he bought access to Disneyland, where the restaurant was".
> In the latest update for the Disney Springs wrongful death lawsuit, Disney cited legal language within the terms and conditions for Disney+, which “requires users to arbitrate all disputes with the company.” Disney claims Piccolo reportedly agreed to this in 2019 when signing up for a one-month free trial of the streaming service on his PlayStation console.
One month free trial! But the Disney Lawyers found it.
Agreed. They should at least say that an artibration clause in a contract can never apply to anything that's not covered by that particular contract for that particular transaction.
As someone who just went through a messy divorce planned for the entirety of the 18m affair my ex-wife was having, there is no court on this earth that I would ever say is reasonable.
The article is just misunderstanding a bit. It's not about Disney+ Streaming, the tickets to the park were bought through the Disney+ account, that's where the relation is (according to Disney, at least).
I'm correcting this everywhere I said it - I'm wrong and the article is right. The park tickets are separate from access to the mall, so they're just as unrelated to the death as the video streaming was...
This News day article is disingenuous. If you look at the filing (someone else in the thread has posted the documents), Disney is saying that the husband bought the tickets to Disneyland (where the restaurant is, and without which they couldn't have accessed it) using his Disney+ account, and that the ticket purchase includes terms that he explicitly agreed to which re-iterate that the Disney+ terms of use apply as well. So there is some plausible argument that the terms apply to services they received at Disneyland, it's not "yes, but he has also subscribed to our streaming service".
I still hope that this doesn't pass muster - your right to seek a lawsuit for grievous injury or death shouldn't be covered by some checkbox you clicked on a site.
The alleged point of arbitration clauses is to ease the burden on the courts, which is rather contradicted when lawyers choose to waste a judge's time with dumb arguments like this.
The point of arbitration is to errode the rule of law and attack the state. Surplanting it with "company law" which is not supervised/vetoed indirectly by democratic voting. All other stated goals are lies, often ironically co-evolving to mimic the states already existing more efficient structures.
From the plaintiff's response to this motion linked elsewhere, I'm thinking that Disney is somewhat compelled to file this motion in order to have any shot at arbitration being relevant at all. Their initial response to the lawsuit (included in the appendix of that plaintiff's response) is a pretty stock "we don't think we have liability here, it's on the restaurant" response. But the plaintiff response notes an aspect of law where a party willingly participating in a lawsuit without asserting their right to arbitration early is presumed to be waiving that right. So it sounds like Disney must produce some argument early in the proceedings that this should be removed to arbitration in order to preserve that possibility assuming that it is something that would be covered by the arbitration agreements.
I'm not sure I buy how they connect their agreements specifically to transactions in this publicly accessible mall, but it seems like if they didn't make the attempt at all, they couldn't later make the attempt if later in the court process something came to light that indicated this should have been handled with arbitration.
I predict we will soon learn that the attorney who filed the motion "on behalf of Disney" was hired by an insurance company providing bodily injury insurance coverage for the restaurant; and that Disney had no knowledge of the motion or its legal argument; and that Disney disagrees with the purported legal position taken.
By way of background: I am a retired trial attorney and spent 40 years litigating cases involving insurance.
I would imagine Disney as a corporate consumer of goods and services would also realise it too was at risk of inadvertently agreeing to "egregious" terms if this went ahead: they would not want to incur the cost of even finer grained legals on things they sign to.
Sauce for the goose, sauce for the Gander. Or in more modern parlance "no, not like that"
Anyone doing business with Disney should cancel their D+ subscription and pay an attorney to properly notify Disney Corp. that the terms of The Agreement no longer apply. Indeed, this step should be taken by sub-contractors, anyone visiting the parks, anyone who could conceivably have contact with the parks, the movie studios, the corporate HQ, any suppliers or subcontractors, or anyone working for any of the above. This move is abhorrent, and if the judge buys it, it is dystopian.
They don't. However, if this motion somehow got granted, a lot of people would get a quick and painful lesson in reading contracts/TOS as more companies would add ridiculous things. Frankly, I ALMOST want Disney to be granted this so that we can have a clear indication on how enforceable TOSs really are.
Disney uses an integrated account system now, if you sign up in order to buy park tickets or use the Disney world app you are probably clicking through a similar agreement anyway. And if you were never going to visit Disney in the first place I'm not sure what other control Disney has over you from these terms.
To be clear I don't agree with this motion to dismiss, I just feel that's hyperbolic. If Disney were to win they only "have you over the barrel" as it pertains to your use of Disney products. Which if you're only using Disney+/going to the movies I'm not sure how severe of a dispute you can have against them. And if you're going to the parks it would be unavoidable regardless of subscribing to D+. Though I'm guessing this won't be upheld.
They own a lot. They have 20 property holding companies, and only a few are obviously owned by Disney, not sure if that also carries to the businesses on all of those properties. It is possible someone could be on Disney owned property, and thus caught under the Disney+ agreement, without knowing it.
I also suspect it won’t be upheld, with Disney’s ever growing footprint, some of these mega companies become harder and harder to ignore.
Fair enough, I knew they owned a lot of entertainment/media related companies but didn't realize they owned additional properties that weren't explicitly advertised as such.
Though in the case of Disney Springs they actually don't own the restaurant, just the property, so I'm not sure what liability they have regardless of this motion. If Disney technically owns the property but independent operators are involved, Disney isn't really the right party to bring a suit against anyway (though obviously they are large and people tend to file broad lawsuits).
(I am not a lawyer, not familiar with Florida state law, and this is not legal advice nor a legal opinion)
It is possible that Disney's lawyers expect their motion to dismiss the wrongful death lawsuit from the Florida trial court and compel arbitration to fail, but are (1) attempting to take the shot and see if the judge agrees, which is a win for them, and (2) may be attempting to take advantage of the rules of procedure where even if their motion is denied, Disney can benefit. There is little for them to lose by trying.
First, as others have commented, even if Disney's arguments fail, the only real consequences are born by the plaintiff in terms of time and other resources. Civil trials like this are wars of attrition between parties with vastly asymmetric resources.
Second, under the rules of civil procedure in many states, which may be the case under Florida law, a denied motion to compel arbitration can be appealed and while that appeal is pending, the case would typically be "stayed" (i.e. paused). Resolution of the appeal can take several years, again applying consequences to the plaintiff in terms of time and other resources, even if the appeal fails.
Because of the above, US corporate defendants have been observed to incorporate motions to compel arbitration into their strategies, even when no arbitration agreement, whatsoever, existed. Even in such a situation, when their motion to compel arbitration is denied, the trial court case is stayed (i.e. frozen) for several years while the denied motion to compel arbitration is pending appeal.
In California, this became such a problem for both regular plaintiffs and the state's Attorney General, that the state legislature passed a law to change the rules of civil procedure, via SB365 (2023), which took effect this year on January 1, 2024. Under current California law, trial court cases are no longer automatically stayed while a denied motion to compel arbitration are pending appeal.
Meanwhile, under US Federal Law (from a Supreme Court ruling in Coinbase, Inc. v. Bielski - 2023), when a motion to compel arbitration under the Federal Arbitration Act (FAA) is denied, the trial court case is automatically stayed.
I disagree. Once it's thrown out as an invalid argument, we'll have documented case law indicating that this argument won't be valid and it will reshape the future actions. It's an important step in the process.
This fails the asymmetry test. There are effectively infinite variations on any wrong argument, they don’t all need to be tested. There’s no progress gained by having to engage in a war of attrition.
Onset is minutes to hours, usually within one or two hours of exposure. "In rare cases, anaphylaxis may be delayed for hours."
(source https://www.mayoclinic.org/diseases-conditions/anaphylaxis/s...) Additionally: "anaphylactic reactions can also present in a biphasic manner in up to 20% of cases. Even after successful management of the initial presenting symptoms, there can be a recurrence of symptoms peaking 8 to 11 hours after the initial reaction." (source https://www.ncbi.nlm.nih.gov/books/NBK482124/)
While delayed anaphylaxis is not unusual, it's the wording of this article that is a touch misleading. This article states "later that evening, Tangsuan had an acute allergic reaction in Planet Hollywood".
This gives the impression of some time passing, and that they perhaps went to Planet Hollywood (presumably to eat again).
According to an earlier article this isn't the case. Instead they ate at about 8pm, and by 8:45pm she had the reaction and entered the Planet Hollywood to seek medical assistance, with the ambulance called nearly immediately.
Can T&C really exclude liability in case of a death? (Unless the deceased was accused of negligence or similar.) And would an arbitration clause be binding on the executors of a will, considering the person who accepted the terms is no longer alive?
I'm not blaming the victim, but would never trust my life to random restaurants and employees. There's just no way that strangers give a damn enough to risk it, even if you tell them to be careful.
At first I tended to agree with that notion - most restaurants are staffed by people who don't get paid enough to really care, and even if they did, humans are fallible.
Then I realized that even cooking at home, you're using ingredients from some random factories that are similarly staffed by people in the same boat capable of making similar mistakes.
I have no idea what the perfect solution is, as personally growing every single thing you eat(or drink) seems absurd if not impossible.
This is an argument commonly raised in favor of a whole food diet: if what you're buying is recognizable, there's less room for tampering. Buying an apple, there could be pesticide residue on the skin, but buying applesauce, goodness knows what they put in there, intentionally or otherwise. And in fact, this is advice I've encountered when buying spices (which tends to be international and a lot of middlemen): buy whole to reduce the chances of adulteration. Whole cinnamon is hard to fake; ground cinnamon could contain literally anything.
While no defense is perfect, and you'd generally like to know and trust the source of your food (and this is an important piece of the puzzle), preferring things in a visually verifiable whole format does offer a way to limit the possible or likely damage. It works in restaurants, too: you can order an unadorned steak, and might still worry about peanut oil residue from the grill, but it beats ordering stir fry and wondering what the abundant gloopy sauce is made of and if the cook even fully knows or if he gets it out of a can too.
There is no perfect solution. However, factories are much more controlled environments than restaurant kitchens, so your odds are much better. Plus, these days, they require foods to have labels for potential allergens for things like using the same facility that makes other foods with those allergens (i.e. even if the product doesn't have $allergen, if other products made there do, they warn you).
So if I had a condition like this, I'd feel much safer with factory-made foods/ingredients than with food from any restaurant.
When you have a potentially life-threatening allergy, everything involves calculations about potential risks and tradeoffs, all the way back up the supply chain to the farm.
Otherwise you're condemned to staying home with no social life, eating unprocessed basic food. And that's no way to live.
Even then, that's not risk free, either. I've had a severe peanut reaction to porridge I made from plain rolled oats, from a brand I'd been eating for years and trusted.
> Otherwise you're condemned to staying home with no social life, eating unprocessed basic food. And that's no way to live.
You can live a full life and still bring or prepare your own food without eating out. If a place bars you from bringing food, I think that's lawsuit worthy with a condition like hers.
The point is that food you're preparing yourself is only marginally safer than food at a restaurant. You still have no way of knowing if the ingredients you're using haven't been accidentally contaminated with the allergen.
Should they have prefaced their statement of personal preference with 'I'm not making a universal normative declaration' to make it clear they weren't doing that?
> Well this just means that for you avoiding death at any cost is more important than leaving a full life
Don't be hyperbolic. It means that avoiding death at the cost of preparing your own meals is more important than eating at restaurants. Restaurants aren't very important and preparing your own meals isn't very taxing, so it's not a high bar to clear.
Many people would consider food to be the greatest joy in life, and eating out at a restaurant to be a treat.
There is also the social aspect, it's one of the best opportunities to enjoy a good moment and bond over, be it with family, lovers, friends or colleagues.
Even outside of all that, the new generation of city dwellers rarely cooks at all because of their active lifestyle.
Preparing meals is about an hour a day which would be more than 50% of my free time outside of work, sleep and training. This is extremely taxing and I'd happily exchange it for a low probability of death in a restaurant.
While what happened is awful, it’s hard to blame anybody.
Anaphylaxis is a huge issue. I think we should chill out and recognize that people make mistakes, and it’s not fair to pin somebody’s death on accidental contamination.
Should they be more careful? Yes.
But you can’t screw someone for this because it’s just not fair. It the universes fault, we shouldn’t be fighting each other.
I agree in principal. Someone with severe enough nut allergies to the point that they'll kill you shouldn't trust any source of food outside your own limited control. The next logical step is restaurants telling patrons they aren't allowed to order if they have food allergies.
I don't subscribe to this take either. As the partner of someone with a server nut allergy why should we be restricted to only eating food we have prepared?
Restaurants have to be able to cope with catering to common allergies, it's really not hard. Some people / establishments just don't seem to take it seriously though, like when a flight attendant told my partner she would be fine to eat the snacks they handed out and that they didn't contain nuts... the bag of roasted corn and nuts...
> Restaurants have to be able to cope with catering to common allergies, it's really not hard.
To the contrary, it's actually extremely hard.
When I order, I probably get something incorrect ~10% of the time. Whether fine dining or fast food.
To deal with life-threatening allergies, you need to get that error rate down from 10% to, what, 0.000001% or something?
You're literally asking for hospital- and pharmacy-level procedures, controls, and training. Which would make restaurants far more expensive and there would be far less of them.
Not impossible, but yes extremely hard, when servers mix up orders and cooks mix up tickets and runners mix up plates and tables.
A procedure I’ve been impressed with is that as soon as you disclose an allergy, the manager will come over with the massive allergen booklet, help take your order and then go and feed that back to the kitchen straight away.
Of course it gets to a point of diminishing returns where you can only rule out so much if the risk but all it should take is proper labelling of ingredients in dishes and training to make sure these processes are followed.
As the other commenter noted, only dishes for those with an allergen need to be prepared separately
Yes, restaurants have specific procedures for allergy meals. But restaurants have specific procedures for everything, and procedures fail constantly.
Saying you have an allergy doesn't mean the server won't simply forget to pass it on. Or won't misremember the ingredients in a dish. Or that a runner won't actually grab a dish for the wrong table.
There are no magic order-to-serving procedures that are guaranteed to work 99.9999% of the time that are also easy to implement in a cost-effective way. It actually is really hard.
So what happens is everybody tries their best but there are just no guarantees, and mistakes get made all the time.
Why can't we blame those who prepared the food? In settings such as this, at a company as large as Disney, it's not acceptable for there to be cross contamination of allergens.
If it turns out to be a mislabelling of ingredients or some other factor outside the restaurant's control then fair enough but you can't just absolve them of their responsibility claiming it's "the universes fault".
> In settings such as this, at a company as large as Disney,
Except in this case Disney is just the landlord. The pub in question is in a mall Disney operates and is run by a different company unrelated to Disney.
It’s at minimum shared blame. People have to work in kitchens with unrealistic work loads and stress. The company is at fault for pushing this environment while knowing it lends itself to mistakes.
Sort-related question: Can restaurants refuse to serve someone who mentions severe dietary restrictions? Honestly, if I owned a restaurant, that's where I would lean because the risk is too high. If one of the cooks accidentally includes the wrong ingredient or the servers get the dishes mixed up, someone could die, as happened in this case. I know there's requirements to accommodate people with certain physical disabilities - wheelchairs, sight/hearing-impaired, stuff like that. But I've never heard of a requirement to accommodate all dietary needs.
I think that would be fine, I have seen at some Pakistani/Indian restaurants where they apologized and said could not remove the ingredients or prevent cross contamination.
Given the assurances by the chef and the waiter I don't understand how this is not a manslaughter or gross negligence charge? This whole situation is a nightmare for someone with strong allergies.
Not every death is the result of criminal action. At best, you might find some argument for criminally negligent behavior, but that's going to probably be a pretty big reach for the landlord of a 3rd party restaurant in a mall. Criminal negligence usually requires the accused to have engaged in conduct that they knew (or reasonably should have known) would put someone in danger.
Even if you say that republishing the 3rd party's menu or even collaborating on that menu extends the civil liability to Disney, I'm having a hard time imagining any argument that those actions could be reasonably known to endanger someone without some evidence that the restaurant had no allergen policies or procedures and that Disney knew that and still placed wording to imply they did.
I don't understand the difference between forced arbitration and sharia law. I don't think the courts do, either, seeing as they've ordered raped/stalked women and labor-trafficked children into "spiritual arbitration" through the Church of Scientology.
In a future so near as to have happened a few years ago, monopolies and near-monopolies can force people who use their services to submit to arbitrary private legal codes and systems of judgement. It's almost like giving up your citizenship. It's like how the US government doesn't have to follow the law in Guantanamo, except Guantanamo is Walgreens, or Amazon.
edit: I just had a 10-second nightmare where giving Walgreens my phone number and hitting "I accept" on the screen at the checkout, in order to get the sale price, somehow prevents me from suing my doctor for malpractice after a horrible medical accident. I thought I was just selling my privacy, but I was actually selling my rights as a US citizen.
Reminds me of the South Park episode where agreeing to Apple's Terms and Conditions gives Steve Jobs the right to perform experimental surgery on you (inspired by the B horror flick Human Centipede). Just found the episode title, "HumancentiPad" S15 E1 from 2011
> Disney claims Piccolo reportedly agreed to this in 2019 when signing up for a one-month free trial of the streaming service on his PlayStation console.
Okay this is full blown dystopia, the onion couldnt even make this up
Christ, she even self administered an epipen, was transported to a hospital and died anyway
This is a nightmare like, just be a human Disney, there are so many humans involved here
Disney dont run the restuarant, they are just the landlord.
The customer didnt pay anything to disney, they just visited a restuarant at a freely open Mall which happened to be owned by disney.
The only reason this person is trying to sue disney is because the disney mall website republished the menu of the restuarant which said 'Allergen Free' on it.
The absurd counter repsonse from disney is just their way of drawing attention to the fact that the original case is just as absurd.
Why are they suing Disney when they had nothing to do with the food served, the staff serving it, or even the company that runs the restuarant?
Is it normal to describe the claimant in a wrongful death lawsuit as a “victim”? I would have said the victim was the person who died.
It makes this seem even more vexatious as Disney want to have the case dismissed because it was the deceased’s husband who signed up for a free trial of Disney+.
There can be more than one victim. In this case, the claimant suffered a loss of the person who died, which is impossible to quantify, but makes them a victim as well.
I wonder if arbitration is not the point. The goal might be to slow down the court system, forcing the court to pause and think about every little thing, such as arbitration, even if the court will never side with Disney on this issue
If we didn't need more reasons not to go Disney World or support Disney. I can't say they have created amazing content recently. Most of the interesting content is not produced by them.
In germany its codified. If an clause is uncommon and unexpected, its invalid. This case would not even hold up in court, since other regulations come first and would cause for the restaurant to be closed for multiple weeks
I feel in my bones that sometime in the last five years, large enough companies have lost the fear of pissing off the public. Consumers have proven too passive and docile to act. Big enough companies have become too big to be disrupted. We're about to enter a new phase of powerlessness.
> Consumers have proven too passive and docile to act
I know it's tempting, but don't blame "consumers".
For one thing, it's mathematically impossible for people to be appropriately outraged over every instance of corporate evil. There's too much of it.
If you want to assign blame, maybe put it on corporate media (like Disney lol). They're the ones who sold us every war, every atrocity we're complicit in, and covered up or distracted from the most important crimes which enabled everything else.
Consumers have free will, agency, and responsibility. We're not NPCs. We don't have to be outraged every day, we just have to stop casually shoveling our money over to just anyone.
And yet, not doing business with disney is so easy. All you have to do is not spend $10/month on their streaming thing. Or not spend thousands on a trip to their park thing. Or not pay a $20 premium for their toy things.
I can't recall ever giving disney money as an adult. And I think the last time my family did was buying a DVD copy of Finding Nemo some time around 2008.
So the outrage threshold to "do something" in this case is "barely outraged at all". In any case, going after one company is a more, not less, realistic target than attacking "corporate media" as a whole.
You might be surprised how broad their reach is. Checking 538 for the upcoming US election? Disney. Popular YouTubers like Epic Rap Battles of history. Disney again. ESPN. Also Disney.
They also have significant investments in most of the other big media companies. There's a high chance something you've watched recently led to compensation for Disney.
I might check FiveThirtyEight once in a while but use an ad blocker. I don't really watch much content regardless and my main newspapers (Economist, FT, WSJ, NYT) aren't owned by or affiliated with the mouse.
In any case, let's stipulate cutting out direct revenue to disney is the easiest and largest step. If a significant proportion of customers just stopped going to parks that would be a serious financial hit.
I would totally agree with you but I think this silent recession is starting to force a miniscule amount of change. Mcdonalds recently had a loss after quarter upon quarter of raking in the profits during the pandemic and treating their customers like crap. The automakers letting their dealers pull all that nonsense of "dealer adjusted" pricing has really come back to bite some automakers really hard. Now brands like Stellantis have their cars piling up and they will probably have to take massive losses to move the metal.
Big enough entities, whether commercial or political or religious. From Apple via Disney, past the DNC and Microsoft towards the Vatican, 'might makes right' is the prevailing attitude. It takes a lot of 'customers' to revolt against such behemoths so they feel safe in the (mostly correct) assumption such a revolt will not get off the ground.
Will it matter? The article mentioned he just signed up for a 1 month free trial years ago. If they cancel their subscription, will the contract be void, or will Disney still hold it over their heads for the rest of their life?
This makes me want to cancel Disney+, but can I revoke my agreement in the process?
This is ridiculous but what I can't work out is why they don't just (correctly) claim that they neither own nor operate the restaurant. It would be absurd to hold a landlord responsible for the actions of their tenant.
There are a lot of reasons as to why this use of the fine print is unconscionable.
1. There was no consideration in exchange for signing the document. Disney offered a gift and Piccolo effectively chose to return it at the end.
2. The period over which the contract applies would implicitly apply to the period of availability and use of the services.
The following were mentioned in the case:
3. The terms of service were not directly included in the contract
4. The contract was not explicitly signed
5. The terms of use related to the Disney Springs area conflict with and supersede the terms in the Disney+ contract
However, I think the fine print has gotten out of hand generally. We need to have basically standard-form contracts for these things and explicit, aware, negotiated signature required for opting out of the standard terms. The problem is the scale. When a thing costs a nominal amount but requires a contract, and the negotiation of the contract is not worth the time or money for either seller or buyer, then it ought to be agreeable to both in the general case and not have any surprises. Reading through terms of service for just about anything these days makes you really wonder what you might be agreeing to. If you sign up for your smart dryer's service, are you losing the right to seek damages in court if your house burns down? The contract is unlikely to be more than a link with a button above it, or a tiny window in which you can scroll through hundreds of lines of text. What if there's an "agree to defend" clause in there and your smart dryer becomes part of a botnet that steals a bunch of money? Many of these uses would be thrown out for being unconscionable, but it just takes one judge to agree.
>There are a lot of reasons as to why this use of the fine print is unconscionable.
>However, I think the fine print has gotten out of hand generally.
This is completely obvious. The problem I'm addressing here is more complicated. If we allow justified but the vague word of "reasonable" to override exact and written wording what does it say about the law itself?
It says that laws and binding contracts are all easily stepped on and completely thrown into the trash by someones opinion of whats reasonable and unreasonable.
That is the fundamental problem here. We don't want people to use fine print to enforce things unreasonably. But we also don't want people simply discard written rules just off some opinion of unreasonableness because this opinion could both in itself be absurd and deliberately deceptive.
Take for instance that prenupts can be thrown into the trash if the bride signed it under distress. The bride can fake distress and completely invalidate something she signed. It's crazy.
Any contract can be invalidated on that grounds. If I sell my land with a gun to my head, that's a good reason to discard the bill of sale. If a party lies about their state of mind afterwards, that's perjury.
False. Not any contract can be violated if signed under duress.
This is not gun to your head level duress. You go to your fiance and ask her to sign a prenupt two hours before you guys tie the knot and threaten to end the marriage if she doesn’t sign… that counts as duress.
Heard a story of a lady who delayed the signing of a prenuptial until such a situation occurred. She delayed and delayed until she would sign, while sobbing, an hour before they tie the knot in front of witnesses. The man ended the marriage right there because of this law.
I dunno, if it didn't happen to you, perhaps you put too much credence into one side of a story. In the first story, you have someone who surprises the other person with a prenup moments before a hugely important event that has already involved considerable expense.
In the second story, there has been no operation of law. Probably the dude, if he really exists, should have gotten the signed prenup before getting the wedding scheduled.
Being reasonable is ill defined in itself. People can willy nilly interpret things how they want. This goes both for the writer of fine print and for the reader. There is merit in following wording to the exact meaning and intent.
How do I get a user to explicitly agree to something that is unreasonable then? There are times where this is the case, for example sky diving, I need the user to consent that he might die.
A sky diving user consenting to die from unforseen problems or inherent risk of the activity is reasonable. Consenting to die from gross incompetence or straight malice is unreasonable.
We need a line between the two, otherwise the common law also becomes meaningless.
Jumping off a plane is highly unreasonable from my point of view. No one should be jumping off a plane for fun because the risk is too high. This is my POV against yours. Who's POV is correct? One way to resolve this is to use Exact wording to establish this "line between the two" you are talking about.
But of course therein lies the problem. You can use this "wording" to uncover loopholes. To get rid of the loopholes you can allow "reasoning" to override these loopholes. But then it becomes your POV against mine. Of course my POV is right and you're obviously wrong. Would that be the more correct way to handle things?
> One way to resolve this is to use Exact wording to establish this "line between the two" you are talking about.
That doesn't touch the core issue: what if your exact wording goes against the law, the constitution or what the justice system is willing to allow ?
That's part of what we call "reasonable". It's not just personal judgement, it can include for instance punishment for willingly killing someone, to go an extreme.
You can't put in exact word in a contract "However way I die from the moment I jump off the plane until two hours after the I touch the ground, Company X should not be faulted in any way, shape or form". That can't be upheld if the instructor cuts your parachute with a knife during the descent, even if you meant it that way in the contract. It's still an homicide.
No. We are not talking about your newly introduced topic here. What I described can still happen without violation of the law. What Disney is doing is completely within the law.
This is a real issue I’m talking about here talked about among law experts. It’s not an issue I’m making up.
Right now if you’re getting stabbed to death by a murderer and there’s a police man 3 meters away from you. That cop by law has no obligation to assist you. It is legally valid for him to watch you get stabbed to death and do nothing. This actual event happened a lawsuit was conducted and the cop was not guilty.
This is legal because if such obligation were enforced there’s no way to word it without making a cop legally obligated to investigate every single crime. There’s just too many and in order for any police station to function they have to be able to choose cases at their own discretion.
In the unlikely best case, they get the case dismissed, but even in the most likely case that the motion is denied, they win by wearing down their opponent who has much more limited resources and is personally affected by the case dragging out, i.e. more likely to accept a (lower) settlement than without this tactic. The only downside is a tiny bit of legal costs.
Courts should be able to issue sanctions/extra damages for the use of such tactics. If using such a tactic turned the claim from "you killed this person negligently" to "you killed this person negligently, then willfully tried sleazy tricks to create additional suffering for the husband", and had the potential to double the award, companies would be much less eager to play this game.