Sunday, December 30, 2012

ASPCA to Pay Ringling Brothers $9.3 Million


 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 alleged that Feld's use of elephants in its Ringling Brothers circus performances and its treatment of those elephants constituted an unlawful taking under the Endangered Species Act. Feld was ultimately successful in the lawsuit, but claimed to  have incurred over $20 million in attorneys fees. In addition to seeking attorneys fees in the underlying action, Feld had separately filed a RICO action against the plaintiffs claiming that the various animal rights organizations, including the ASPCA, had made payments to Rider for his testimony which constituted bribery of a witness. 

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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