Many problems result from large firm lawyers following routines when responding to litigation. The Disney case is a great example. When a case comes into Disney, it instructs its outside counsel to look for and invoke arbitration clauses. They do not consider the bad publicity that move can generate. The same is true for the 9-year-old girl. The client instructs outside counsel to routinely invoke copyright or other protections. But routine practices are not an excuse for failure to think.
So true. And to be sure, big corporations get hit with a gazillion lawsuits, and these guidelines—"if plaintiff claims X, argue Y"—work in the vast majority of cases. But lawyers must be able to recognize when they don't.
I’ll over generalize by claiming that litigators as a tribe see themselves as the only real lawyers. That tendency can lead to a genial contempt of business lawyers, in-house counsel and clients and, what?, over privileging their relatively rarified expertise (the only true expression of full litigatorhood is first seat at a jury trial).
Ah, but what happens to the internal client who gave the go-ahead for a particular legal strategy to move forward? The Disney and American Airlines defenses were poorly considered, but the companies also approved those defenses.
In the case of American, they claim that "outside legal counsel, retained with our insurance company, made an error in this filing." So I'm not sure that any lawyer at AA signed off on that strategy.
When my husband and I were still in practice, every so often one of our cases would get the attention of the press, which was usually the Washington Post. But invariably, the reporter mangled the facts. Every. Time. I don’t know if there’s a cure for that (and we’re retired now anyway) but I could have used it.
More examples of "what were they thinking?" and an apparent inability to read the room. Contrary to our opinions we are not necessarily the smartest peeps and our seeming blindness to that contributes to bone-headed calls.
I don't think the UCLA story really belongs here. Indeed, it kinda suggests that maybe the PR folks aren't going to do any better. According to the NYT it was Mary Osako, the vice-chancellor for strategic communications, who released a statement claiming the judge's order who hamstring their ability to respond to events on the ground.
And maybe they did have a point. I can't find the original order linked anywhere but it's not at all clear exactly what that order requires them to do. For instance, does it mean that anytime a pro-Palestinian group gathers -- even out of the way on grass -- and a student wearing a yamaka tries to walk through their protest circle and is told to go around UCLA has to call the cops immediately?
Don't get me wrong, the way the protestors have acted towards Jewish students and the way the university has responded so far have been awful. But we'd think it was crazy if an injunction didn't give law enforcement any flexibility in how it responded to illegal actions and I understand why the university worries that even if it merely tries to defuse a situation that is only happening off on some unused grass rather than calling the cops that could be interpreted as allowing the situation. Not to mention that I certainly don't put it past groups on the other side to try and use an injunction like that as a club.
1. I actually reviewed Judge Scarsi's order, especially the grant of relief, before writing this. There's nothing in it that UCLA should oppose (and as reflected in their internal announcement linked above, they are dutifully following it):
The key word in the order is "knowingly"—i.e., UCLA won't be held in contempt if they're unaware of a situation (or if they act promptly to address a situation, as they've now pledged to do). What would get them in trouble is if they allow Jewish students to be blocked from an area for days on end.
2. I assume it was the lawyers who decided to appeal (or at least played a significant role in making that decision). And lawyers definitely filed the notice of appeal in the Ninth Circuit (which they subsequently dismissed).
Thank you for the link. I tried to follow through the links about it on the piece and didn't fine it. I think I'm a bit less sure than you about where that decision came from but that's mostly about the discussion below.
Fegarding the second point of the order, it explicitly forbids UCLA from knowingly allowing Jewish students to be excluded as part of a deescalation strategy so it wouldn't be obvious to me they had a couple days to try to kick them out before they had to escalate to physical force (they no doubt think they've been being reasonable when they wait months). Waiting sounds like a deescalation strategy.
But I guess that is something they could solve by asking for clarification rather than appealing. So I withdraw my remark.
Can I please write in defense of Disney seeking to compel arbitration?
Our mostly liberal media, which knows nothing about litigation, civil procedure, or the many serious problems with our tort system, which operates primarily as a transfer of wealth from corporations to attorneys and as a tax on consumers, seems to have bought the line by the plaintiff's bar that somehow arbitration is akin to the ritual slaughter of kittens.
This is, of course, nonsense.
From Disney's perspective, consider that for every valid claim of wrongful death, negligence, etc., there are about 10,000 frivolous claims. If you doubt this, try explaining how virtually every aspect of our society is safer, but the cost of insurance has outpaced inflation by orders of magnitude.
From the Tangsuans' perspective, arbitration only changes the process, not the outcome. The Tangsuans are still entitled to the same relief, if the claim is valid, only by an arbitrator or panel of arbitrators (probably at Disney's expense). An arbitrator can award just as much in punitive damages as a jury can. Perish the thought that a case be decided by qualified, experienced arbitrators who know the law, rather than 12 random idiots.
The only people who stand to benefit from barring arbitration are plaintiff's attorneys. Not their clients and certainly not the rest of us who ultimately pay the bill through higher prices.
Disney should have stood its ground. Sure, idiots on X will parrot the same talking points from the plaintiff's bar, and articles written by AI on MSN will get a few hundred thousand clicks. A few so-called "loyalists" will threaten to break ties. So what? By next week, people will be talking about cat videos and Taylor Swift again.
One last point. Disney is the last company on Earth that can credibly refuse to take a stand on matters of public policy. Unlike what third graders can be told about adult sexuality by teachers, arbitration of disputes is expressly a company policy. If it is going to say anything, defend anything, let it be on an issue that actually matters to its shareholders.
The plaintiff’s response to the motion (linked below) strikes me as persuasive. Just skim the first nine pages. Two key points (among many made by plaintiff’s counsel):
1. Piccolo is suing in a representative capacity (standing in for the estate of his wife), and under Florida law, his individual actions, taken years earlier, do not bind the estate—which did not even exist in 2019.
2. The arbitration provision on its face limits the arbitration to matters related to Disney+—specifically, to disputes “concerning the Disney + Service, the ESPN+ Service, or this Agreement [to sign up for Disney+].”
Many problems result from large firm lawyers following routines when responding to litigation. The Disney case is a great example. When a case comes into Disney, it instructs its outside counsel to look for and invoke arbitration clauses. They do not consider the bad publicity that move can generate. The same is true for the 9-year-old girl. The client instructs outside counsel to routinely invoke copyright or other protections. But routine practices are not an excuse for failure to think.
So true. And to be sure, big corporations get hit with a gazillion lawsuits, and these guidelines—"if plaintiff claims X, argue Y"—work in the vast majority of cases. But lawyers must be able to recognize when they don't.
I’ll over generalize by claiming that litigators as a tribe see themselves as the only real lawyers. That tendency can lead to a genial contempt of business lawyers, in-house counsel and clients and, what?, over privileging their relatively rarified expertise (the only true expression of full litigatorhood is first seat at a jury trial).
Ah, but what happens to the internal client who gave the go-ahead for a particular legal strategy to move forward? The Disney and American Airlines defenses were poorly considered, but the companies also approved those defenses.
Very good point!
In the case of American, they claim that "outside legal counsel, retained with our insurance company, made an error in this filing." So I'm not sure that any lawyer at AA signed off on that strategy.
https://www.usatoday.com/story/travel/news/2024/05/29/american-airlines-fires-legal-team-9-year-old-girl/73897705007/
When my husband and I were still in practice, every so often one of our cases would get the attention of the press, which was usually the Washington Post. But invariably, the reporter mangled the facts. Every. Time. I don’t know if there’s a cure for that (and we’re retired now anyway) but I could have used it.
More examples of "what were they thinking?" and an apparent inability to read the room. Contrary to our opinions we are not necessarily the smartest peeps and our seeming blindness to that contributes to bone-headed calls.
I don't think the UCLA story really belongs here. Indeed, it kinda suggests that maybe the PR folks aren't going to do any better. According to the NYT it was Mary Osako, the vice-chancellor for strategic communications, who released a statement claiming the judge's order who hamstring their ability to respond to events on the ground.
And maybe they did have a point. I can't find the original order linked anywhere but it's not at all clear exactly what that order requires them to do. For instance, does it mean that anytime a pro-Palestinian group gathers -- even out of the way on grass -- and a student wearing a yamaka tries to walk through their protest circle and is told to go around UCLA has to call the cops immediately?
Don't get me wrong, the way the protestors have acted towards Jewish students and the way the university has responded so far have been awful. But we'd think it was crazy if an injunction didn't give law enforcement any flexibility in how it responded to illegal actions and I understand why the university worries that even if it merely tries to defuse a situation that is only happening off on some unused grass rather than calling the cops that could be interpreted as allowing the situation. Not to mention that I certainly don't put it past groups on the other side to try and use an injunction like that as a club.
1. I actually reviewed Judge Scarsi's order, especially the grant of relief, before writing this. There's nothing in it that UCLA should oppose (and as reflected in their internal announcement linked above, they are dutifully following it):
https://becketnewsite.s3.amazonaws.com/20240813183534/injunction.pdf
The key word in the order is "knowingly"—i.e., UCLA won't be held in contempt if they're unaware of a situation (or if they act promptly to address a situation, as they've now pledged to do). What would get them in trouble is if they allow Jewish students to be blocked from an area for days on end.
2. I assume it was the lawyers who decided to appeal (or at least played a significant role in making that decision). And lawyers definitely filed the notice of appeal in the Ninth Circuit (which they subsequently dismissed).
Thank you for the link. I tried to follow through the links about it on the piece and didn't fine it. I think I'm a bit less sure than you about where that decision came from but that's mostly about the discussion below.
Fegarding the second point of the order, it explicitly forbids UCLA from knowingly allowing Jewish students to be excluded as part of a deescalation strategy so it wouldn't be obvious to me they had a couple days to try to kick them out before they had to escalate to physical force (they no doubt think they've been being reasonable when they wait months). Waiting sounds like a deescalation strategy.
But I guess that is something they could solve by asking for clarification rather than appealing. So I withdraw my remark.
Can I please write in defense of Disney seeking to compel arbitration?
Our mostly liberal media, which knows nothing about litigation, civil procedure, or the many serious problems with our tort system, which operates primarily as a transfer of wealth from corporations to attorneys and as a tax on consumers, seems to have bought the line by the plaintiff's bar that somehow arbitration is akin to the ritual slaughter of kittens.
This is, of course, nonsense.
From Disney's perspective, consider that for every valid claim of wrongful death, negligence, etc., there are about 10,000 frivolous claims. If you doubt this, try explaining how virtually every aspect of our society is safer, but the cost of insurance has outpaced inflation by orders of magnitude.
From the Tangsuans' perspective, arbitration only changes the process, not the outcome. The Tangsuans are still entitled to the same relief, if the claim is valid, only by an arbitrator or panel of arbitrators (probably at Disney's expense). An arbitrator can award just as much in punitive damages as a jury can. Perish the thought that a case be decided by qualified, experienced arbitrators who know the law, rather than 12 random idiots.
The only people who stand to benefit from barring arbitration are plaintiff's attorneys. Not their clients and certainly not the rest of us who ultimately pay the bill through higher prices.
Disney should have stood its ground. Sure, idiots on X will parrot the same talking points from the plaintiff's bar, and articles written by AI on MSN will get a few hundred thousand clicks. A few so-called "loyalists" will threaten to break ties. So what? By next week, people will be talking about cat videos and Taylor Swift again.
One last point. Disney is the last company on Earth that can credibly refuse to take a stand on matters of public policy. Unlike what third graders can be told about adult sexuality by teachers, arbitration of disputes is expressly a company policy. If it is going to say anything, defend anything, let it be on an issue that actually matters to its shareholders.
The plaintiff’s response to the motion (linked below) strikes me as persuasive. Just skim the first nine pages. Two key points (among many made by plaintiff’s counsel):
1. Piccolo is suing in a representative capacity (standing in for the estate of his wife), and under Florida law, his individual actions, taken years earlier, do not bind the estate—which did not even exist in 2019.
2. The arbitration provision on its face limits the arbitration to matters related to Disney+—specifically, to disputes “concerning the Disney + Service, the ESPN+ Service, or this Agreement [to sign up for Disney+].”
https://assets.ctfassets.net/3kqcuzntcg31/44jbm0vnEx1KrdgIYOO0hd/6c378775851d5e7ff04e1e0f3074de7d/AUGUST_2ND_RESPONSE.pdf