Seaworld’s lawyer delivered a lengthy, disjointed, disorganized, rambling tirade to the 9th Circuit recently, on a case in which Seaworld will unfortunately probably prevail.
A handful of citizens have hired counsel and filed a class-action lawsuit against Seaworld, under the legal theory that the company’s well-known, well-documented and proven abuse and neglect of sea animals constitutes consumer fraud. More specifically, the plaintiffs argue that:
SeaWorld took great and conscious care to conceal from them the poor health and condition of its captive orcas, lest they decline to spend money supporting the ongoing suffering of these animals. For this reason, plaintiffs did not know the material facts and circumstances of these orcas’ lives in captivity at SeaWorld at the time of their purchases. Having subsequently learned about the actual condition and treatment of the orcas at SeaWorld, as many in the public now have, plaintiffs brought this case under the consumer protection laws of the three states where SeaWorld parks are located.
(Pl.’s Opening Brief at 5.) The theory sounds good to me, as someone who has been to SeaWorld on family trips before I really learned and appreciated the extent to which its killer whales suffer. But it’s clearly a tough sell to the federal judges that have studied the arguments. A federal district court dismissed the lawsuit without allowing it to even proceed to discovery. The plaintiffs appealed to the 9th Circuit. After the submission of briefs, the 9th Circuit held oral argument on March 12, 2018. (See video.)
The plaintiffs’ lawyer presented what I thought was a passionate and well-reasoned argument to the skeptical panel. The same is simply not true of SeaWorld’s lawyer, who didn’t seem to have with him an outline of organized arguments he wanted to present. Instead, he stood up and apparently decided that a stream of consciousness rant would be of service to the court. For vast swaths of time, the judges were not bothering to ask him any questions. Many lawyers would suggest that when this happens, the lawyer is best served by shutting up and sitting down, rather than boring the panel—especially since a lack of questions can indicate a feeling by the panel that it agrees with you anyway. SeaWorld’s counsel was interested in no such cues though. He kept droning. The judges were probably having to stifle yawns.
In any event, the plaintiffs appeared to have faltered in the district court because they just didn’t allege with sufficient precision the facts supporting their fraud and deception theory. If a consumer purchased a SeaWorld ticket under false pretenses, when did that consumer receive false advertising messages from a SeaWorld ad, for instance? Questions such as these were not addressed in the complaint filed in court, even after the plaintiffs got the chance to amend it. Sadly, the plaintiffs drew a pretty conservative panel on appeal so my gut instinct is that they will simply affirm the dismissal. Judge Wallace is a Nixon appointee, and Judge Callahan was appointed by George W. Bush. Both are well-known conservatives who are probably deeply skeptical by nature of this novel animal-rights legal theory. I hope I am wrong but I’m not holding my breath.
