12:25pm PT by Eriq Gardner
SeaWorld Says Suing Investors Haven't Established 'Blackfish' Impact
What does pop singer Ariana Grande have to do with federal securities law?
The answer comes from SeaWorld Entertainment, telling a judge on Friday to dismiss a shareholder class action alleging it failed to advise Blackfish would hurt its business.
The lawsuit, originally filed in September 2014, claims Seaworld made materially false statements and downplayed the Blackfish backlash to investors. A complaint lodged in California federal court makes the case that SeaWorld and some of its larger institutional shareholders should have done more to address how Gabriela Cowperthwaite's film, which premiered at the 2013 Sundance Film Festival and then got heavy rotation on CNN, hurt attendance.
In a 57-page memo (see below), SeaWorld attempts to explain why the lawsuit is defective.
Perhaps the most amusing part comes when the company addresses the "fever pitch" of celebrities like Ariana Grande seeing the documentary film about the mistreatment of orcas and telling social media followers to "never to go to @SeaWorld again."
The lawsuit "does not allege who Ariana Grande’s (or other celebrities’) followers are, what country they live in, if they even read the tweets, and, if they do, whether they do as Ms. Grande suggests, or if any followers had plans to go to SeaWorld, which they canceled because of the tweets."
SeaWorld's response to the lawsuit is largely premised on the argument that the suing investors can only establish that Blackfish impacted attendance in a "conclusory" fashion.
In fact, SeaWorld is throwing some doubt on whether Blackfish actually impacted attendance, or at least, in the time frame that plaintiffs are looking to establish. "Notably, in the fourth quarter 2013, when Plaintiffs allege that CNN aired Blackfish to millions, attendance at the SeaWorld-named parks was at record levels," says SeaWorld in the memorandum.
It's true that attendance later dipped, but SeaWorld says the allegations that Blackfish is responsible "amount to nothing more than unwarranted inferences, based purely on speculation."
The defendant says there's nothing secret about the fact that celebrities were tweeting about the film, bands were canceling appearances, corporate sponsors were ending relationships, and animal activists were targeting the company.
But SeaWorld says it wasn't being clearly misleading when its executives were blaming falling attendance on factors such as bad weather or competition. In the motion to dismiss, SeaWorld stands behind other factors that might have caused attendance to swing including what its competitors were doing at the time Blackfish premiered. For example, Disney was drawing crowds to a renovation of its Fantasyland while Universal Studios was opening a new Transformers ride.
To demonstrate misrepresentations, the plaintiffs will need to show that SeaWorld's officers acted with intent or knowledge of wrongdoing. The plaintiffs have put forward four anonymous former employees speaking up about what was happening at the theme parks when statements about attendance were being made. But the lawsuit doesn't allege these individuals "met or communicated with the Officer Defendants, had any knowledge about factors that impact attendance … or ever heard or learned, in any way (at a meeting, via email, in a memoranda or report) that any executive at SeaWorld believed Blackfish caused attendance to decline."
SeaWorld admits that it revised attendance forecasts after CNN aired Blackfish, but says the existence of attendance budget reports "does not mean the cause of such declines was Blackfish" nor that the revisions "had anything to do with Blackfish."
Yes, the documentary may have been discussed at employee meetings, and SeaWorld might have taken steps to counter the negative publicity of the film, but SeaWorld says it still doesn't lead to an inference that its executives were intentionally misleading anyone.
And if those arguments fail, SeaWorld argues that it did disclose that a trainer was killed in 2010; that media attention including the documentary ensued; and that it did advise that negative publicity may harm its reputation. And if it underplayed Blackfish in "Risk Factor disclosures," well, the defendant says such statements are inactionable.