Antitrust Law Daily Wrap Up, ADVERTISING—S.D. Cal.: SeaWorld consumers’ misrepresentation claims over whale treatment tank, (Dec 29, 2015)

By Greg Hammond, J.D.

Allegations that SeaWorld Entertainment, Inc.—the leading marine life theme park—created a false and misleading illusion for the public concerning the condition and treatment of its captive killer whales were dismissed by the federal district court in San Diego. The court concluded that the consumers failed to identify any misrepresentations or omissions and additionally failed to meet the specificity requirements of Federal Rule of Civil Procedure 9(b) in bringing their California, Florida, and Texas false advertising and deceptive trade practices claims (Hall v. SeaWorld Entertainment, Inc., December 23, 2015, Bencivengo, C.).

Consumers lack standing. The court first determined that the California consumers lacked standing to bring their California Unfair Competition Law (UCL), False Advertising Law (FAL), and Consumers Legal Remedies Act (CLRA) claims. There were no allegations, and the consumers conceded that they have not specifically alleged, reliance on any particular statement or omission made by SeaWorld. In addition, SeaWorld did not have any general duty to disclose facts concerning the health or welfare of the whales in captivity to consumers, the court concluded. Although the consumers identified 15 alleged misrepresentations, they failed to specify when they were exposed to the statements, which ones they found material and relied on, and most of the alleged statements were made after the consumers purchased their tickets, demonstrating that they could not have relied on them when making their purchase. The UCL, FAL, and CLRA claims were therefore dismissed.

Similarly, the court dismissed the Florida Unfair & Deceptive Trade Practices Act (FDUTPA) and Texas Trade Practices-Consumer Protection Act (TDTPA) claims, finding: (1) the consumers failed to specifically allege they viewed any statements or advertisements prior to purchasing their tickets, which precludes standing under the FDUTPA and TDTPA; and (2) the complaint failed to allege the misrepresentations and omissions with specificity, as required by Rule 9(b).

Injunctive relief. The consumers’ claims for injunctive relief were also dismissed. The court found that there was no chance the consumers were being misled by SeaWorld’s alleged false statements and omissions regarding the treatment of whales at SeaWorld parks, because the complaint did not allege that the consumers ever believed or relied on any statements by SeaWorld. Further, it was clear that the consumers did not intend to visit SeaWorld parks again.

The case is No. 3:15-CV-660-CAB-RBB.

Attorneys: David H. Carriger (The Calwell Practice) for Holly Hall. John M. Simpson (Norton Rose Fulbright US LLP) and Lawrence Yale Iser (Kinsella Weitzman Iser Kump & Aldisert LLP) for SeaWorld Entertainment, Inc.

Companies: SeaWorld Entertainment, Inc.

Cases: Advertising StateUnfairTradePractices CaliforniaNews