Once again, SeaWorld has failed in its efforts to derail litigation aimed at requiring truthful statements about the lives of orcas in captivity. On Feb. 21, 2018, SeaWorld lost its fourth attempt to have the case “Anderson v SeaWorld” dismissed and avoid adjudication on whether SeaWorld made (and continues to make) false and misleading statements about its orcas to its customers. “Anderson v SeaWorld” challenges SeaWorld’s claims about the health and welfare of their captive orcas.
The International Marine Mammal Project is helping the law team at Covington & Burling LLC with consultations and expert review of this important orca captivity case.
By way of background, the plaintiffs in this false advertising lawsuit allege that they relied on one or more of SeaWorld’s misrepresentations about captive orcas in deciding to purchase SeaWorld tickets or merchandize (see footnote 1). They asked that the Court prohibit SeaWorld from continuing to spread misinformation about its captive orcas and also order SeaWorld to return the money the plaintiffs spent on their respective purchases. After failing to have the lawsuit dismissed despite three previous Motions to Dismiss, on October 30, 2017, SeaWorld filed a Motion for Summary Judgment asserting that each of the plaintiffs lacked legal standing to seek relief from the Court. Simply put, SeaWorld asked the Court to find that none of the plaintiffs’ claims were worth taking to trial and to award judgment in SeaWorld’s favor, as a matter of law.
SeaWorld’s Motion for Summary Judgment did not address the underlying merits of the case—i.e. whether SeaWorld’s statements to its customers were indeed false or misleading.
In the February 21st ruling, Judge Jeffrey White denied the majority of SeaWorld’s Motion for Summary Judgment, while granting some parts of their motion. The Court found genuine issues of fact with respect to each of the Plaintiffs’ claims against SeaWorld and thus rejected SeaWorld’s request to award judgment in SeaWorld’s favor without a trial. The significance of the ruling is that, absent unexpected circumstances, SeaWorld would need to actually go to trial and defend the veracity of its statements about orcas.
Several key findings:
1. Each of the plaintiffs has standing to seek an injunction against SeaWorld:
“The Court finds SeaWorld has failed to meet its burden on the question of whether Anderson [Plaintiff No. 1] has standing to seek injunctive relief.” (page 6)
“The Court concludes Morizur [Plaintiff No. 2] has presented triable issues of fact on the issue of whether she has standing to seek injunctive relief.” (page 6-7)
“The Court finds Nelson (Plaintiff No. 3) has presented triable issues of fact on the issue of whether she has standing to seek injunctive relief.” (page 7-8)
2. SeaWorld cannot show that its statements were not a substantial factor in Plaintiff Anderson’s decision to purchase SeaWorld merchandize:
“It is reasonable to infer that the captive orca lifespan statement influenced Anderson’s decision to visit the park and, consistent with the allegations in the [Third Amended Complaint], may have reassured him that ‘SeaWorld takes good care of its orcas.’ … When the Court considers Anderson’s testimony in its entirety, the Court finds the record is sufficient for a reasonable juror to find that if Anderson had known what he contends to be the truth about orca lifespans in captivity, in all reasonable probability he would not have purchased the Shamu toy.” (page 12-13)
3. SeaWorld cannot show that Plaintiff Nelson suffered no economic injury as a result of SeaWorld’s misrepresentations:
“The Court concludes that Nelson has put forth sufficient evidence to create a triable issue of fact about whether she suffered an economic injury.” (page 16)
The lawsuit is being represented on a pro-bono basis by the law firm Covington & Burling LLC. The International Marine Mammal Project of Earth Island Institute is consulting on various scientific and other aspects of the case for the plaintiffs.
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(1) The lawsuit involves four allegedly false and misleading claims made by SeaWorld—namely that (i) its captive orcas live just as long as wild orcas; (ii) SeaWorld does not separate orca mothers and calves; (iii) dorsal fin collapse are normal and commonly found among wild orcas; and (iv) captivity in general is not harmful for orcas.