Some of you may have seen the news articles (e.g., here and here) in the past day or so reporting on a motion to compel arbitration brought by Disney lawyers in a Florida state court wrongful death case. The widow of a woman who suffered a fatal allergic reaction at a Disney World restaurant is suing Disney claiming it is responsible for her death.

Disney moved to compel arbitration of the dispute, arguing that a broad arbitration agreement that the woman’s husband e-signed five years early when he signed up for the Disney + streaming service covers the current dispute. The motion cites the very broad language of the clause, which purports to cover any dispute in the future between the subscriber and any affiliate of The Walt Disney Company , even if unrelated to the streaming service. The motion also cites to a similar arbitration clause the widower purportedly agreed to a year earlier when buying park tickets online.

A court will have to decide whether to compel arbitration both on the merits and on the arguably delegated issue of arbitrability. Plaintiff’s counsel was quoted as calling the arguments supporting arbitrability “preposterous.”

The lawsuit reminded me of Professor David Horton’s (U.C. Davis law) brilliant article, Infinite Arbitration Clauses, 168 Penn. L. Rev. 633 (2020). His article predicted exactly this type of extremely broad application of arbitration agreements combined with delegation clauses in the corporate context – what he termed “infinite” arbitration clauses, or “those that mandate arbitration for all disputes between any related party in perpetuity.” His article surveyed courts’ enforcement to date of infinite clauses for a dispute unrelated to the “container contract” and proposes a framework for interpreting them in the future. Worth a read even now, four years later, and very prescient!