Antitrust Law Daily Wrap Up, STATE UNFAIR TRADE PRACTICES NEWS: Sea World alleged to mislead public about the treatment of its performing whales, (Apr 14, 2015)

By Linda O’Brien, J.D., LL.M.

The massive marketing of leading marine life theme park SeaWorld has created a false and misleading illusion for the public about the condition and treatment of its captive orcas that appear in its entertainment shows, according to a complaint filed in the federal district court in San Diego, California (Hall v. SeaWorld Entertainment, Inc., March 25, 2015).

SeaWorld is the leading marine life theme park in the world and showcases killer whales—Ornicus orca—in special amphitheaters. As part of its marketing, SeaWorld states that it cares for, protects, and nurtures its captive orcas. Holly Hall is a consumer who has purchased admission tickets at SeaWorld for herself and her family.

The complaint states that, in its marketing, SeaWorld creates the illusion that the company deeply cares for and benefits from the orcas it holds and breeds in captivity. SeaWorld advertisements depict orcas in a colorful, positive light designed to convince potential consumers that the orcas are thriving in captivity. In addition to representing its exceptional care for its orcas, SeaWorld promotes its scientific mission to provide critical orca conservation research.

Orcas are the most widely distributed of all marine mammals, found in all parts of the oceans. They are highly intelligent, family oriented, and socially complex with distinct cultural traditions among at least ten distinct ecotypes. In objectively good natural environmental conditions, orcas can live long, healthy lives, the complaint states.

According to the complaint, although its advertisements promise to recognize and respect familial bonds, SeaWorld separates calves from their mothers within its captive orca population, sometimes as young as two years of age. This results in observable suffering for the separated orcas, which are animals who have persisted in the wild with a high degree of familial cohesion. To SeaWorld, the captive orcas are commodities to be moved and relocated as the company sees fit regardless of the psychological and physical harm caused to the orcas as a result.

The complaint also alleges that SeaWorld falsely claims that its habitats are safe and healthy for its orcas. Rather than providing the highest standards of care, the orcas are forced to subsist the duration of their lives in cramped conditions and in water conditions with unhealthy chemicals. Due to shallowness of their pools and tanks with little or no shade, the orcas are exposed to sunlight and high temperatures which can be fatal. Moreover, the orcas are purposefully deprived of food for training reinforcement. SeaWorld’s captive whales deteriorate as a result of their treatment and live shorter lives than they would have in the wild.

In February 2010, an experienced SeaWorld trainer was killed by an orca taken as a young calf from his family in the wild. An immediate investigation by the Occupational Safety and Health Administration (OSHA) uncovered dozens of documented examples of aggression toward trainers at SeaWorld facilities. Despite the evidence, SeaWorld orchestrated a marketing campaign to mislead the public about the nature and extent of captive whale attacks. In addition to aggression, other captive orca behaviors are manifested as a result of the orcas’ confinement and treatment, the complaint charges.

SeaWorld’s business practices are unfair and deceptive and the company has a duty to disclose the material facts about the condition and treatment of its captive orcas. As a result of its misconduct, SeaWorld has generated substantial revenue from the sale of its amusement parks showcasing captive orcas. SeaWorld’s false and misleading statements and omissions regarding the condition and treatment of its orcas are unethical and the plaintiff would not have paid for tickets to SeaWorld visits had she known of the SeaWorld’s exploitation of captive orcas, the complaint states.

The plaintiff assert claims for deceit, unfair and deceptive trade practices, unjust enrichment, and violations of California’s Unfair Competition Law, Consumers Legal Remedies Act, False Advertising Law, Florida Deceptive and Unfair Trade Practices Act, and the Texas Deceptive Trade Practices Act. The action seeks injunctive relief, restitution, damages, pre-judgment interest, costs of suit, attorney fees, and any other just and proper relief.

In a related action, according to a complaint filed by a consumer in the federal district court in Orlando, Florida, SeaWorld falsely advertised and promoted the condition and treatment of its captive killer whales and disguises the unhealthy and despairing lives of these whales (Kuhl v. SeaWorld LLC, April 9, 2015).

The cases are Nos. 3:15-cv-00660 and 6:15-cv-00574.

Attorneys: Steve W. Berman, Shayne C. Stevenson, and Elaine T. Byszewski (Hagen Berman Sobol Shapiro LLP) for Holly Hall. Paul S. Rothstein for Joyce Kuhl.

Companies: SeaWorld Entertainment, Inc.; SeaWorld LLC; SeaWorld of Florida, LLC; SeaWorld & Busch Gardens Conservation Fund, Inc.

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