Calif. federal judge dismisses complaint filed by SeaWorld customers over refunds

By Jessica Karmasek | Jan 14, 2016

SAN DIEGO (Legal Newsline) - A federal judge has dismissed a complaint filed by a group of SeaWorld customers suing the marine life theme park, alleging it “deliberately concealed” its unethical treatment and conditions of its captive orca whales.

Judge Cathy Ann Bencivengo granted SeaWorld’s motion to dismiss the plaintiffs’ first amended complaint in a Dec. 23 order.

The original complaint, filed in the U.S. District Court for the Southern District of California in March, alleged SeaWorld employs psychoactive drugging, forced separation of calves from their mothers, forced and unnatural breeding and cramped conditions that lead to aggression and disease, among other things.

The proposed class -- which was consolidated with two other nationwide classes in August -- argued they wouldn’t have paid for admission to SeaWorld, for SeaWorld memberships or the animal “experiences” if they had known the truth about the treatment and behavior of the park’s orcas in captivity, and are entitled to refunds as a result of the park’s alleged false advertising.

SeaWorld, in response, argued that the plaintiffs lacked standing because they didn’t allege they relied on any specific misrepresentations when purchasing their tickets.

“Although Plaintiffs list the alleged actionable misrepresentations in their opposition, they effectively concede that they have not specifically alleged reliance on any particular statement,” Bencivengo noted in her order.

The judge said the plaintiffs tried, unsuccessfully, to equate SeaWorld’s alleged advertising about its killer whales with tobacco companies’ decades-long campaign concerning the health effects of smoking.

“The FAC (First Amended Complaint), however, does not allege any advertising or other statements by SeaWorld from before 2013,” Bencivengo wrote in the 33-page order. “Further, the statements quoted in the FAC allegedly come from an array of sources and mediums, including securities filings, testimony in administrative proceedings, radio interviews, and statements posted on SeaWorld’s website.

“With the possible exception of the website, many of these statements were not even made in advertisements, let alone as part of a pervasive advertising campaign of the sort at issue in Tobacco II.”

SeaWorld has been the target of various lawsuits in recent years.

In 2014 -- six months before the March class action filing -- a stockholder sued the park, claiming SeaWorld denied its recent decline was due to the 2013 documentary “Blackfish.” The film focuses on Tilikum, an orca held by SeaWorld, and the controversy over captive killer whales.

A separate class action was filed in 2014 against the park over allegations that it automatically renewed annual passes without consumers’ consent and didn’t follow the wording of its own contract when confronted with excessive charges.

Last year’s filing came days after SeaWorld launched a new advertising campaign highlighting the company’s leadership in the care of killer whales and contributions to protect whales both in human care and in the wild.

“There’s been a lot of misinformation and even lies spread about SeaWorld, and we recognize that it has caused some people to have questions about the welfare of killer whales in human care,” said David D’Alessandro, chairman and interim CEO.

“This long-term campaign will address those questions head on. We want to provide the facts, so people can make up their own minds on this important issue.”

In her order last month, Bencivengo gave the plaintiffs leave to file a second amended complaint on or before Jan. 25.

Attorneys for the class could not immediately be reached for comment on the judge’s ruling.

But Steve Berman, managing partner of Hagens Berman Sobol Shapiro LLP, which is representing the class, has called SeaWorld an “unhealthy corporation.”

“Simply put, we believe that SeaWorld as it exists now, an unhealthy corporation that uses orcas for its own profit, must finally tell the truth about the treatment and condition of its captive orcas,” he said in March.

From Legal Newsline: Reach Jessica Karmasek by email at

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