Attack on the Big Top
Photo by: Elizabeth Preyer
On July 8, 2012, United States District Judge Emmet G. Sullivan issued an 87-page opinion giving Feld Entertainment Inc. (“FEI”), the parent company of Ringling Brothers and Barnum & Bailey Circus (“Circus”) the green light to continue with its complaint against various animal rights activists groups, including the Humane Society of the United States (“HSUS”). The lawsuit stems from a previous lawsuit in which these groups brought an action against FEI. The previous lawsuits alleged that the Circus mistreated circus elephants in violation of the Endangered Species Act, allegations FEI successfully defended. After nearly a decade of an expensive legal battle fighting these allegations, FEI finally had enough and filed their own complaint in 2007 – a complaint alleging the plaintiffs from the action against FEI violated both the Racketeer Influenced and Corrupt Organizations (“RICO”) Act and the Virginia Conspiracy Act during the litigation process. The complaint also contains a host of other allegations against the groups, including malicious prosecution and fraud. Also named as defendants are the counsel of record from the previous action, including senior attorneys for HSUS. FEI’s allegations center around payments from the animal rights groups to Tom Rider, a former employee of the circus who served as both a plaintiff and star witness. To get a feel for the current climate, a brief timeline is necessary.
In 2000, several individuals and organizations filed suit against Ringling Brothers and Barnum & Bailey Circus, alleging its treatment of elephants violated a provision of the Endangered Species Act. (See Performing Animal Welfare Soc‘y v. Ringling Bros. & Barnum & Bailey Circus, No. 1:00CV01641, 2001 U.S. Dist. LEXIS 12203 (D.D.C. Jun. 29, 2001), rev’d sub nom. ASPCA v. Ringling Bros. & Barnum & Bailey Circus, 317 F.3d 334 (D.C. Cir. 2003), judgment for defendants sub nom. Am. Soc’y for the Prevention of Cruelty to Animals v. Feld, 677 F. Supp. 2d 55 (D.D.C. 2009). For the purposes of this article, these earlier cases will be referred to as Circus #1 and Circus #2). The United States District Court dismissed Circus #1 for lack of standing. The Court of Appeals reversed, holding that one individual, Tom Rider—a former Circus employee and elephant caretaker—had presented enough evidence of standing to survive the motion to dismiss. The original complaint alleged that Rider was emotionally attached to the elephants and suffered from their mistreatment; the United States Court of Appeals held that this could constitute an “aesthetic” injury and the case could advance. After the decision, Rider and the other plaintiffs dismissed the original action, Circus #1, and filed a new complaint, Circus #2. Following a six-week-long bench trial, the United States District Court held that the plaintiffs, including Rider, did not have standing. The District Court did acknowledge that Rider’s allegations, if proven, would suffice to provide standing but found that he was “essentially a paid plaintiff and fact witness” who lacked credibility. (Am. Soc’y for the Prevention of Cruelty to Animals v. Feld, 677 F. Supp. 2d 55, 67 (D.D.C. 2009). In particular, Rider was unable to show that he was emotionally attached to the animals; he was not even able to identify them by name when shown a video. The decision was upheld by the United States Court of Appeals in October 2011.
In their 2007 complaint, FEI specifically alleged that payments made to Rider by the plaintiffs in the prior action (totaling $190,000 and funneled through the counsel on record) violated the RICO Act. Performing Animal Welfare Soc’y v. Ringling Bros. & Barnum & Bailey Circus. Despite plaintiffs’ arguments that the payments were given to support Rider’s advocacy efforts, the District Court found that the plaintiffs were not forthcoming about the payments to Rider and held that the payments were given to keep Rider involved in the ligation. The District Court explained,
“[T]he primary purpose of the funding provided by the organizational plaintiffs . . . was to secure Mr. Rider’s initial and continuing participation as a plaintiff in this litigation. This is not a case in which the financial support began years–or even months–after Mr. Rider’s advocacy efforts, which might suggest that the organizations were simply providing financial support so that Mr. Rider could continue advocating for an issue or cause to which he had long since demonstrated a commitment. To the contrary, the financial support in this case began before the advocacy efforts and suggests that absent the financial incentive, Mr. Rider may not have begun or continued his advocacy efforts or his participation as a plaintiff in this case. In May 2001, at the time that the organizational plaintiffs commenced providing financial support to Mr. Rider . . . Mr.Rider was the only plaintiff in the case alleging that he had a personal and emotional attachment to FEI’s elephants and the only plaintiff alleging that FEI’s treatment of its elephants caused him aesthetic and emotional injury. . . .[I]t was . . . crucial to the organizational plaintiffs that Mr. Rider remain a plaintiff. The Court finds that ensuring Mr. Rider’s continued participation as a plaintiff was a motivating factor behind the payments to him, and that these payments were a motivating factor for his continued involvement in the case.” ASPCA v .Feld Entm’t, 677 F. Supp. 2d at 81.
FEI alleges that the counsel of record for the prior action and named as defendants in the RICO action knew or should have known that Rider’s testimony was not only false, but bought. Furthermore, these attorneys funneled the payments to Rider. In some instances, the money paid to Rider showed up on bills as legal fees. FEI alleges that it was an attempt by all involved to conceal the true purpose of the payments. If proven, the involvement of the attorneys could, at worst, result in the inability to practice law.
What began as an attack on the Big Top could spell big trouble for the not only the animal rights groups involved, but the lawyers who represented and continue to represent them.
