Feld Entertainment, Inc. is the owner of Ringling
Brothers and Barnum and Bailey Circus. On
December 20, 2012 Feld announced that it has reached a settlement of its claims
against the American Society for the Prevention of Cruelty to Animals (ASPCA)
for attorneys fees in the amount of $9.3 million. Feld’s claims arose from its
defense of a lawsuit which had been filed
against Feld over 12 years ago by the ASPCA, an individual named Tom
Rider, and several other animal protection organizations. According to its press release, Feld's
settlement is effective only with regard to the ASPCA. Feld asserts that it will continue to pursue
claims for litigation abuse and RICO against the other plaintiffs in the underlying
action, including Rider as well as the Humane Society of the United States, the
Fund for Animals, and the Animal Welfare Institute.
The
underlying lawsuit was initially filed in 2000.
The lawsuit was based upon the Endangered Species Act (the
"ESA"). Asian elephants of the type used by Feld in its circus
performances are a protected species under the ESA. Feld has a permit under the ESA to possess and
exhibit elephants under the ESA, but the plaintiffs claimed that Feld
mistreated the elephants by using bullhooks to train and control them and by
using chains to restrain the elephants. Since the ESA defines "taking"
of a protected species to include, among other matters, harassing, harming or
wounding protected animals, the plaintiffs argued that this alleged
mistreatment in captivity constituted a "taking" under the ESA. If this claim have eventually been upheld on
the merits, as a practical matter it would have extended the ESA to any
instance of alleged animal abuse of captive animals involving a protected
species.
The
individual plaintiff Tom Rider had been a barn helper for Feld for several
years and had helped feed and clean up after the elephants. Rider had also
worked as an elephant attendant for several other circuses before and after
working for Feld. In the complaint Rider
alleged that (i) he had a strong personal attachment to the elephants, (ii) he
left his job with Feld specifically because of the mistreatment of the
elephants, (iii) he would have liked to work with these elephants again if
those elephants were relocated and not abused and (iv) that he suffered
aesthetic and emotional distress injury because of his knowledge of the manner
in which the elephants were mistreated.
The Federal
District Court initially dismissed the underlying lawsuit on grounds that the
plaintiffs lacked standing to bring an action against Feld under the ESA. However, the Appellate Court subsequently ruled that Mr. Rider's specific
claims based upon his alleged personal relationship with these particular
elephants constituted a claim of an actual injury in fact that, if true, might
constitute the basis for standing under the ESA. The Appellate Court did not rule on whether
the animal rights groups had standing and sent the matter back to the District
Court in 2003. The lawsuit again became
active, and extensive discovery was
conducted by all the parties over a period of 5 years. In addition several
different animal rights groups came and went as plaintiffs, although Mr. Rider
continued to be featured as the primary individual plaintiff.
During
this period Mr. Rider was, according to the pleadings and the Court's findings,
in effect unemployed and supported by the various animal rights groups who
provided him with "grants" to engage in animal rights advocacy. Feld
claimed that these payments were simply payments to Rider to act as a witness
and constituted unlawful bribery of a witness. Feld also claimed that Rider's testimony
changed over time as he continued to be supported by the animal rights
groups. The District Court ultimately found
that the various animal-rights groups paid Mr. Ryder approximately $200,000
over a six-year period primarily for the purpose of keeping him available as a
witness.
In 2009,
a court trial was held. The District Court Judge not only found that Mr. Rider had been paid
by the various animal rights groups and was essentially a paid witness, but also
found that his allegations in support of his claim for standing lacked any
credibility. Rather than support a claim of a personal and emotional attachment
to the elephants, the evidence showed that (i) Mr. Rider had difficulty even
remembering the names of the elephants or identifying them from pictures,
(ii) actively disliked at least one
elephant which he referred to as a "bitch" and a " killer
elephant"[1], (iii) had continued to use bullhooks on other
elephants at other circuses after having allegedly quit Feld because of his
distress at seeing those instruments used and (iv) did not complain about the treatment of
elephants until after being paid by animal rights groups to do so. Mr. Rider's claim for standing arose only
because of his claim of a personal relationship with the elephants and his
alleged aesthetic injury and accompanying emotional distress. In its findings of fact the Court specifically
stated that Mr. Rider had been repeatedly impeached, and had been "pulverized"
under cross examination. Since Mr. Rider's factual assertions in support of his
claim for standing were not substantiated, the Court held that Mr. Rider did
not have standing to sue Feld under the ESA.
By the
time of the trial, most of the animal rights groups had dropped their claims of
standing to sue Feld directly under the ESA.
However the plaintiff Animal
Protection Institute (API) argued at the trial that it had standing to sue under
the ESA. API's theory was that it had "informational standing"
because the ESA permit process required the applicant ("Feld) to disclose
certain information in its application for a permit to possess and exhibit the
elephants. API's theory in effect was
that Feld did not disclose its intent to "take" the animals by harassing,
harming or wounding them in its permit application and that API had a right to
sue Feld under the ESA to force Feld to disclose the information which API
claimed was required in the permit application. The Court rejected this
argument as too remote to grant standing, particularly since the purpose of the
ESA is not to provide information about "takings" but rather to
prohibit them except in very limited circumstances.
API also
attempted to claim that it had standing under what is referred to as the
"Havens Doctrine" because
Feld's alleged unlawful conduct under the ESA undermined its advocacy and
educational purposes "by contributing to the public misimpression"
that use of bullhooks and chains are lawful and humane practices. The
court rejected the argument that an advocacy organization's abstract concern
with a subject by itself would somehow give rise to standing in the absence of
a concrete and demonstrable injury.
The court
found in favor of Feld on all counts because
the plaintiffs lacked standing to sue under the ESA (the trial court’s opinion is
published at American Society for the Prevention
of Cruelty to Animals v. Feld Entertainment, Inc. (2009) 677 F.Supp.2d 55. The plaintiffs filed a second appeal of the
trial court's findings. That appeal was
denied in 2011 (the appellate court's
opinion is published at American Society
for the Prevention of Cruelty to Animals v. Feld Entertainment Inc. (2011)
659 F.3d 13).
Feld did
not prevail on the merits in the underlying lawsuit. The lawsuit was dismissed solely
based upon procedural grounds because the plaintiffs were found to lack
standing. Therefore the issue of whether alleged mistreatment of a protected
species while in captivity under a valid ESA permit constitutes a violation of
the ESA remains an open question. The Courts' rulings do have some benefit to
the zoo and aquarium industry because the rulings on standing greatly restrict
the ability of animal rights groups to bring actions under the ESA
directly. However the appellate court's
initial finding in 2003 that an individual plaintiff might have standing under
the right facts leaves the door open. It is still possible that a Court might
decide that mistreatment or mishandling of a protected species in a zoo or
aquarium constitutes a prohibited "taking" under the ESA.
This case is remarkable not for the legal
issues addressed but rather for the incredibly poor judgment shown by the plaintiffs
and the incredible amount of money and resources which were expended in
litigating the case. At the end of the day, the court’s ruling did not even
reach the substance of the allegations made by the plaintiffs. Instead the
court's ruling was based entirely on procedural determination that these
particular plaintiffs lacked standing to sue under the ESA (but leaving open
the door for other plaintiffs with better facts) . In the meantime, the plaintiffs and the
defendants spent tens of millions of dollars in attorneys fees and costs over
the course of 12 years.
Feld and
its Ringling Brothers circuses received some negative publicity (which likely
was part of the plaintiffs' goal). However
the ASPCA and the other animal rights advocates involved were in effect found by
the Court to have engaged in serious litigation misconduct. These “bad acts” by
the plaintiffs are not only part of the reason that Feld was successful in the
underlying lawsuit, but are no doubt also the reason that the ASPCA agreed to
pay such a large settlement. This $10 million settlement will likely have a
significant adverse impact on the ASPCA's ability to pursue its legitimate
goals over the next few years. And while
Feld and its counsel may feel somewhat vindicated by this recent settlement,
this pyrrhic victory was not worth the cost incurred in dollars, resources or
time.
[1]
This perspective is not surprising in an animal handler familiar with elephants.
Despite the love of elephants by the general public and the anthropomorphism of
elephants because of their physical appearance, elephants are one of the more
dangerous animals in public displays and are responsible for many injuries and
deaths to zoo personnel.
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