More than thirteen years ago, a number of animal rights groups sued the owner of Ringling Bros. and Barnum & Bailey Circus, now Feld Entertainment. The groups wanted the circus to stop using a device known as a bullhook to control Asian elephants.
Fast forward to today and the bullhook case has boomeranged. Those same animal rights groups and their lawyers paid $25.2 million to Feld Entertainment. Why? Because a federal judge determined that the original lawsuit was vexatious, frivolous, groundless and unreasonable from its inception.
The attorney for Feld Entertainment who engineered the turnaround was John Simpson, a partner at Fulbright & Jaworski in Washington, D.C.
In the original Endangered Species Act lawsuit, Feld Entertainment discovered the animal rights groups and their lawyers had paid over $190,000 to a former circus employee, Tom Rider, to be a “paid plaintiff.”
The court also found that the animal rights groups and their attorneys “sought to conceal the nature, extent and purpose of the payments” during the litigation.
“After winning 14 years of litigation, Feld Entertainment has been vindicated,” Simpson said at the time of the settlement. “This case was a colossal abuse of the justice system in which the animal rights groups and their lawyers apparently believed the ends justified the means.”
“It also marks the first time in U.S. history where a defendant in an Endangered Species Act case was found entitled to recover attorneys’ fees against the plaintiffs due to the Court’s finding of frivolous, vexatious and unreasonable litigation. The total settlement amounts represent recovery of 100 percent of the legal fees Feld Entertainment incurred in defending against the ESA lawsuit.”
“The lawsuit was brought by an individual former employee of Ringling Brothers and four animal rights groups,” Simpson told Corporate Crime Reporter in an interview last week. “They contended that the manner in which the company handles and takes care of its Asian elephants constitutes a so called ‘take’ under the Endangered Species Act.”
“In particular, they claimed the use of an instrument called ‘the guide,’ also known as ‘the bullhook,’ and the use of chains to tether these elephants at night and in the railroad cars, that those two tools and practices constitute a take. They sought an injunction against the use of those two tools.”
“Section nine of the Endangered Species Act prohibits the take of an endangered species,” Simpson said. “Take is defined as killing, wounding, harassing and so forth. This type of argument had never been made with respect to an animal that is in captivity, or that had been bred in captivity. And all of the Ringling Brothers elephants had either been born in captivity or had been in captive conditions since prior to the passage of the statute. Not a single one of these elephants had been removed from the wild after the passage of the act. That is what made this unique.”
“It was our view, and it is still my personal opinion, that Congress never intended that term to apply to captive animals. What Congress intended was that the statute would prohibit trafficking in endangered species over interstate or international boundaries and would prohibit the take of wild animals — animals free ranging in the wild — in order to protect their habitat in the United States. But it was very unclear — and remains unclear to this day — the extent to which Congress actually intended that standard to be applied to captive animals.”
“The point of this claim was not to improve the welfare of these animals. The point of this claim was to eliminate elephants in performance.”
To gain standing under the Endangered Species Act, the animal rights groups needed to show an aesthetic injury.
“Rider’s alleged aesthetic injury was that he could not bear to see these elephants managed with a guide or with chains,” Simpson said. “And so as a result, he quit his job and was staying from the elephants that he had claimed this strong emotional attachment to them.”
“The problem with that was that it turned out to be false. He didn’t have such an attachment. And he didn’t witness any mistreatment. Or whatever he did witness didn’t bother him.”
“That evidence came out at trial, principally through his cross examination. And on top of the fact that he was an incredible witness, according to the judge, he had been paid $190,000 to be a plaintiff by the other organizations and their lawyers, money that had been his sole source of income throughout this period of time.”
“The groups claimed that he was paid to do public outreach work, but the court found as a matter of fact after hearing the evidence, that he was paid primarily to be a plaintiff in the case,” Simpson said. “That was Judge Emmet Sullivan. He has an explicit finding of fact to that effect in his opinion.” (Sullivan 2009 opinion. Sullivan 2013 opinion.)
After Judge Sullivan dismissed the case, Feld filed for attorneys fees and countered claiming that the groups had engaged in RICO violations.
“After we briefed our entitlement to legal fees in the Endangered Species Act case and after the judge ruled in the RICO case that he was going to deny the motion to dismiss, the the American Society for the Prevention of Cruelty to Animals (ASPCA) approached us and sought a settlement,” Simpson said.
Who was the attorney for ASPCA?
“Peter Tomlinson at Patterson Belknap in New York,” Simpson said. “I can’t get into the back and forth in that process, but that process began in November 2012. And over a period of about six weeks, we reached an agreement so that by December 28, 2012. We agreed to dismiss the claims and they would pay $9.3 million in cash.”
The settlement with ASPCA upped the pressure on the other groups to settle.
And then there was a significant ruling by a magistrate judge.
“The groups filed a motion for a protective order trying to block our access to their donor records and to the identities of the donors that we say were misled by this scheme,” Simpson said. “And that motion was denied.”
“When that motion was denied, we came to the resolution of the case.”
“They didn’t want a situation where I’m taking the deposition of some donor asking — if you knew they were going to take this money to pay a witness, would you have given this donation?” Simpson said. “I don’t think they wanted that kind of discovery to take place. Some people might have made the donation anyway. But most of these people would have said — no, I wouldn’t have done that. And you would have been in the middle of their donor relations and potentially cutting off their donations in the future.”
Key lawyers in the settlement negotiations were Roger Zuckerman of Zuckerman Spaeder, who represented The Fund for Animals and Brad Nes and Christian Mixter of Morgan Lewis who represented the Humane Society.
“There were a series of meetings where we met with all of the parties,” Simpson said. “And then I met with just Zuckerman. And we went back and forth. I’m not going to get into the specific conversations. We made it clear from the outset that they could have the same kind of deal that the ASPCA had, it just had to be more money. It’s pretty simple. Straight forward releases. Payment of cash. Dismissal of the case. And the whole thing is going to be in the public domain. No confidentiality.”
What was the final settlement?
“It was $15.75 million for the rest of the parties, cash payment made in a single wire transfer to Feld Entertainment. The total amount was $25.2 million.”
Who paid what part of the $15.75 million?
“I don’t know. I do know that in their arguments to the court, the Fund for Animals and Born Free and the Animal Welfare Institute — the three organizational parties to the Endangered Species Act case — those three argued that they should not be required to pay anymore than $2 million. And that they would go out of business if they had to pay $7 million. So, somebody else provided that extra money. And that somebody else had to be the Humane Society.”
(For the complete q/a format Interview with John Simpson, see page 28 Corporate Crime Reporter 27(12), July 7, 2014, print edition only.)