Choosing the Best Litigation Path Requires Weighing Both Legal and Reputational Risks
8/21/24 – – When clients are weighing the risks and benefits of legal action, I refer them to the wisdom of the late country recording star Kenny Rogers, who advised: “You’ve got to know when to hold ’em, know when to fold ’em, know when to walk away, and when to run.”
Legal advisors at The Walt Disney Company may have been humming Roger’s “The Gambler” tune this week when the company dropped its effort to deny a grieving husband whose wife died hours after dining at a Disney World restaurant the opportunity to bring his wrongful death claim to court.
Negative public response to what was perceived as uncaring legal overreach inconsistent with Disney’s friendly, customer-focused brand contributed to the change in strategy.
A Dinner at Disney World Turns Deadly
According to media reports, Jeffrey Piccolo and his wife – who was severely allergic to dairy foods and nuts – dined on October 5, 2023, at Raglan Road Irish Pub. His lawsuit claims that the couple chose this restaurant, which is located within the Walt Disney World Resort in Orlando, because of assurances on a Disney online map that customers with food allergies would be accommodated.
Alleged is that despite the waiter being made aware of these allergies, foods with nut and dairy ingredients were served, causing Piccolo’s wife to collapse when they returned to their hotel. She died later that night in a hospital. The cause of death, according to a medical examiner, was “anaphylaxis due to elevated levels of dairy and nut in her system.”
Now comes the part of this tragic story that most angered the news media and the public.
Hey, Read the Fine Print
Disney’s attorneys argued that because Piccolo bought tickets to Disney World using an account he had created to get a free trial of the Disney+ streaming service, he was bound by a clause in the “terms of service” that surrendered his right to a public trial. As the small print made clear (and Disney argued Piccolo had a “duty to read”), any lawsuit he brought against Disney would require arbitration.
If one objective of the online agreement was to keep embarrassing Disney World customer experiences out of sight, it backfired. Empathetic discussion of Piccolo’s plight and outraged reaction to Disney’s unDisney-like response went viral.
Knowing When to Fold ‘em
Rather than defending the legality of its contract, Josh D’Amaro, Chairman of Disney Parks, Experiences and Products, took Kenny Roger’s lyrics to heart, telling The Washington Post on Monday:
“At Disney, we strive to put humanity above all other considerations. With such unique circumstances as the ones in this case, we believe this situation warrants a sensitive approach to expedite a resolution for the family who have experienced such a painful loss. As such, we’ve decided to waive our right to arbitration and have the matter proceed in court.”
Good decision. And don’t be surprised if we never hear about this case again. In legal matters, Disney has a lot of experience deciding when to hold ‘em and when to fold ‘em.
Responding to an Earlier Tragedy at Disney World
In 2016, Lane Thomas Graves, a two- year-old boy, was killed in an alligator attack at Disney World. It would be hard to come up with a more horrendous scenario for a family visiting the “happiest place on earth.”
A less sophisticated organization might have gone into defensive mode, arguing in the media and court that the area where the attack took place was closed to visitors at the time of the incident and that signage clearly warned of the potential hazard. Instead, Disney immediately expressed its sadness and regret, making no assertions that the family did anything wrong.
New barriers were erected to make areas close to water safer, new signage was installed, and all mechanical alligators featured in rides and attractions were pulled out of service.
A settlement was quickly arrived at out of court between Disney and the family. It’s likely a sizable amount of money was paid to avoid ugly, drawn-out, and potentially even more expensive litigation and publicity.
Without the fight, media attention died down quickly.
Some attorneys argue that to cave on restitution before being hauled into court is foolish. One serious problem with this position is that our nation’s courts of law move at a snail’s pace compared to the court of public opinion. While you’re waiting for the legal process to determine the restitution you’ll have to pay, your reputation is being destroyed in the media and across the internet.
Of course, there are situations when it’s right to fight.
Redefining the Meaning of Finger Food
In 2005, a woman claimed that a human finger had found its way into her Wendy’s chili. Yuck! Wendy’s and law enforcement authorities had plenty of reasons to suspect fraud. But the media ran with the sensational story 24/7, daring the fast-food company to either admit fault or blame the traumatized customer.
Wendy’s held their cards. Without pointing fingers (sorry) at the woman, they offered a $50,000, then $100,000 reward for information leading to answers or an arrest in the case.
They confidently defended their food safety and processing protocols, never attacking the customer, even as reporters began to uncover troubling inconsistencies in her story.
It took a month for the truth to come out. The customer had obtained the finger from a friend of her husband who had lost it in a work accident. Yuck again! She pleaded guilty to conspiring to file a false claim and attempted grand theft, and was sentenced to four years in jail.
Wendy’s never received any apologies from the news outlets that savaged the restaurant’s reputation and drove away millions of dollars in sales. But by holding their fire while living up to their conviction that “the customer is always right,” Wendy’s eventually won back their reputation and market share.
So, when deciding the best litigation path to take, always weigh both your legal and reputational risks. And while you’re deliberating, sing along with me:
You’ve got to know when to hold ’em
Know when to fold ‘em
Know when to walk away
And know when to run
You never count your money
When you’re sittin’ at the table
There’ll be time enough for countin’
When the dealins’ done.
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