The Inhumanity Clause: The Rise of Forced Arbitration in Death and Injury Cases Introduction and Overview

THE INHUMANITY CLAUSE:
The Rise of Forced Arbitration in Death and Injury Cases

INTRODUCTION AND OVERVIEW

(For the full study, click here.)

A “forced arbitration” clause is legal wording buried in the fine print of contracts that people routinely encounter as part of everyday life: bank and cell phone agreements, online platforms and apps, camp and gym registration forms, nursing home admission forms, employment agreements and even forms to access some health care services. Simply put, it means that if the company cheats, defrauds or otherwise harms someone, that individual cannot sue the company in court before a judge or jury. Instead, they are forced to resolve their dispute in a private, secretive, rigged system controlled by the company, with limited discovery, no public record and no appeal. Moreover, forced arbitration clauses almost always include class action bans so similarly-harmed victims with small individual damages can’t join with others to sue a company that is profiting by harming large numbers of people at once.[1]

Most people are unaware these clauses exist, let alone meaningfully agree to them or understand their implications. But even if they know about them, rarely do individuals have any ability to negotiate their terms. Corporate lawyers, lobbyists and PR flacks justify imposing them on people with a fairly modest pitch: Harmed consumers and workers who sign away their right to sue in court can resolve their disputes in a faster, cheaper forum.[2] These arguments are demonstrably false. Forced arbitration is neither faster nor cheaper, and consumers nearly always lose.[3] However, this framing sidesteps a far more disturbing issue: What happens when the dispute is not a billing error but a death?

In October 2023, Kanokporn Tangsuan died from an anaphylactic reaction after eating at a Walt Disney World restaurant. Kanokporn, a New York physician, had severe dairy and nut allergies. Her husband Jeffrey said they had repeatedly informed restaurant staff of her allergies and were assured that her meal would be allergen-free. When he sued Disney for her wrongful death, Disney moved to sweep the case out of court and force it into arbitration.[4] The company’s reasoning seemed inexplicable: Years earlier, Jeffrey had signed up for a Disney+ streaming trial and buried in the app’s fine print was a forced arbitration clause. Disney argued that this protected the company from having to defend in court its conduct at Disney World—conduct that may have caused Kanokporn’s death. Public condemnation of Disney was swift.[5] In August 2024, Disney Chairman Josh D’Amaro publicly reversed the company’s legal strategy, dropping its arbitration request and announcing in a statement, “At Disney, we strive to put humanity above all other considerations.”[6]

A year later, another terrible and very public tragedy offered a test of whether others would recognize the “inhumanity” of forced arbitration that Disney had acknowledged. The evidence suggests they would not. On July 4, 2025, a flash flood killed 25 campers and two counselors at Camp Mystic in Texas. Many victims’ families filed wrongful death lawsuits against the camp. In response, Camp Mystic moved to force these cases into arbitration, arguing that the parents had signed enrollment agreements for the children that contained forced arbitration clauses. As of publication, there has been no ruling on the arbitration motion. And unlike Disney, to date Camp Mystic has not voluntarily reversed course.[7]

Read together, these two cases show that the “faster, cheaper and better-for-consumers” pitch long used to sell arbitration to the public was never really tested against its darkest extremes—cases involving wrongful death, catastrophic injury or criminal abuse. In Disney’s situation, the company calculated that the public backlash cost more than the arbitration clause was worth. However, as we found in this report, most other companies rarely, if ever, respond the same way.

It should be noted that the source of the backlash is firmly rooted in U.S. history and governing documents. Indeed, the right to bring a case before a jury of one’s peers is not a peripheral feature of the American legal system. It is one of its foundational guarantees, rooted in the Seventh Amendment to the U.S. Constitution as well as nearly every state constitution, and reinforced by centuries of common law.[8] The Founders considered the right to civil jury trial a critical check on power, or as the late conservative U.S. Supreme Court Chief Justice William Rehnquist called it, “an important bulwark against tyranny and corruption.”[9]

The proliferation of forced arbitration clauses has quietly stripped that constitutional guarantee away from an enormous swath of the American public without their knowledge or meaningful consent. Everyday people subject to these agreements are rarely contemplating catastrophic injury or death; they are signing up for a free trial or enrolling a child in summer camp. But when tragedy strikes, they discover that the fine print they never read or understood may have already decided their fate, routing what the Founders intended to be an inviolable right to trial by jury into a private, secret process.

The gap between how forced arbitration is marketed (i.e., as a convenience for consumers) and how it is actually deployed (i.e., as a shield against accountability for causing severe harm and death) is one Corporate America will not acknowledge let alone examine. Notably, corporate forced-arbitration advocates like the U.S. Chamber of Commerce refuse to even survey such cases in their advocacy materials.[10] This report attempts to fill some of that gap.

Below are recent examples of individuals who turned to the civil justice system to hold wrongdoers accountable for personal injury or wrongful death, only to have those same bad actors try to kick their cases out of court and force them into arbitration. We include representative examples of recent cases that are typical of what we are seeing in the judicial system today. In other words, this study is not an exhaustive list of cases and there are no doubt many more just like them. It is also notable that we encountered more cases with victims injured or killed in ride-share crashes[11] or as a result of nursing home neglect[12] than any other category of cases we examined. That said, our report shows that forced arbitration has affected everyone in this country—from employees to the elderly, passengers to patients, toddlers to truckers.

We have divided the paper into two sections: cases where defendants/wrongdoers were permitted to force the case into arbitration and cases where they tried but failed to do so—with the caveat that some are still on appeal and could ultimately turn out differently. While every case, underlying claim, court and judge is different, these examples may provide a blueprint for attorneys trying to find legal avenues around forced arbitration for their clients. They also show how important it is for Congress to act to ban forced arbitration altogether, particularly when it comes to personal injury and death. States are barred from enacting statutes or judicial rules that categorically exempt such claims from arbitration.[13] Only Congress can fix this. In more than one case that we examined, a sexual assault survivor would have been forced into arbitration had their case not fallen within a narrow exception enacted by Congress in 2021.[14] Each situation described in this report deserves equal attention from U.S. lawmakers.

Finally, it is important to recognize that, in all circumstances, forcing personal injury and wrongful death victims and their attorneys to litigate the validity of a forced arbitration clause imposes significant costs on the parties and the court and is particularly burdensome on victims. When a company moves to compel arbitration, the victim or surviving family members must devote additional time and resources to litigating whether they are even entitled to have their claims heard before a judge or jury. That can require briefing, discovery, hearings and possibly appeals—all before they get to the underlying injury or death claim. For individuals coping with physical harm, mounting medical expenses, lost income or the death of a loved one, forcing them to litigate whether they can access the courthouse in the first place is a cruel and wasteful barrier to justice.

For the full study, click here.