Case 4:15-cv JSW Document 156 Filed 12/01/17 Page 1 of 21

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1 Case :-cv-0-jsw Document Filed /0/ Page of 0 KINSELLA WEITZMAN ISER KUMP & ALDISERT LLP LAWRENCE Y. ISER (SBN 0) liser@kwikalaw.com KRISTEN L. SPANIER (SBN 0) kspanier@kwikalaw.com 0 Wilshire Boulevard, rd Floor Santa Monica, California 00 Telephone: (0) -00 Facsimile: (0) -0 NORTON ROSE FULBRIGHT US LLP JOHN M. SIMPSON (admitted pro hac vice) john.simpson@nortonrosefulbright.com MICHELLE C. PARDO (admitted pro hac vice) michelle.pardo@nortonrosefulbright.com REBECCA E. BAZAN (admitted pro hac vice) rebecca.bazan@nortonrosefulbright.com th Street NW Suite 000 Washington, DC 00-0 Telephone: () -00 Facsimile: () - Attorneys for Defendant SeaWorld Parks & Entertainment, Inc. IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA MARC ANDERSON, KELLY NELSON and JULIETTE MORIZUR on their own behalf and on behalf of a class of others similarly situated, v. Plaintiffs, SEAWORLD PARKS AND ENTERTAINMENT, INC., Defendant. OAKLAND DIVISION Civil Action No. :-cv-0 JSW JCS DEFENDANT S NOTICE OF MOTION AND MOTION FOR SANCTIONS PURSUANT TO FED. R. CIV. P. AND MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF [Fed. R. Civ. P. ] DATE: February, TIME: :00 A.M. ROOM: COURTROOM JUDGE: Hon. Jeffrey S. White :-cv-0 JSW JCS DEFENDANT S NOTICE OF MOTION AND MOTION FOR RULE SANCTIONS AND MEMORANDUM OF POINTS AND

2 Case :-cv-0-jsw Document Filed /0/ Page of 0 NOTICE OF MOTION AND MOTION TO ALL PARTIES AND THEIR COUNSEL OF RECORD: PLEASE TAKE NOTICE that on February,, at :00 a.m. or as soon thereafter as this matter may be heard before the Honorable Jeffrey S. White in Courtroom of the United States District Court for the Northern District of California, located at 0 Clay Street, Oakland, California,, Defendant SeaWorld Parks and Entertainment, Inc. (SeaWorld) will and hereby does move the Court for an order, pursuant to Federal Rule of Civil Procedure (c), directing Plaintiffs counsel to reimburse SeaWorld for its reasonable attorneys fees and costs incurred in connection with defending against this case, and any other penalties and nonmonetary directives that the Court considers appropriate under Federal Rule of Civil Procedure (c)(). SeaWorld moves for Rule sanctions because discovery in this case has revealed that Plaintiffs counsel, in conjunction with an anti-seaworld advocacy group, recruited Plaintiffs who did not have valid claims, and brought this lawsuit for the improper purposes of harassing SeaWorld, gaining media attention, and gathering information for an anti-seaworld campaign. Plaintiffs proposed Second Amended Complaint, Second Amended Complaint, and operative Third Amended Complaint contained patently false factual allegations about each Plaintiffs standing, which were either known to Plaintiffs counsel or should have been known based on even a cursory investigation. The frivolousness of the case combined with Plaintiffs counsel s conduct in discovery and in the press improperly attempting to funnel confidential SeaWorld information to an anti-seaworld advocacy group and using the case for publicity confirms that this case was brought for improper purposes. This motion will be based upon this Notice; the Memorandum of Points and Authorities and exhibits and declarations attached hereto; the record in this case; any additional evidence or argument presented at or before the hearing on this matter; and all pleadings on file in this action. Dated: December, NORTON ROSE FULBRIGHT US LLP By: /s/ John M. Simpson JOHN M. SIMPSON Attorneys for Defendant - i - :-cv-0 JSW JCS DEFENDANT S NOTICE OF MOTION AND MOTION FOR RULE SANCTIONS AND MEMORANDUM OF POINTS AND

3 Case :-cv-0-jsw Document Filed /0/ Page of 0 TABLE OF CONTENTS TABLE OF CONTENTS... ii TABLE OF AUTHORITIES... iii SUMMARY OF ARGUMENT... iv I. INTRODUCTION... II. BACKGROUND... A. The Plaintiffs... B. Earth Island/International Marine Mammal Project... C. Plaintiffs Current Claims and Allegations... D. Discovery, Summary Judgment, and Service of Rule Motion... III. LEGAL STANDARD... IV. PLAINTIFFS COUNSEL VIOLATED RULE... A. Plaintiffs Counsel Misled the Court to Keep the Case Alive... B. Plaintiffs Counsel Pursued Frivolous Claims For Improper Purposes... V. PLAINTIFFS COUNSEL SHOULD BE ORDERED TO PAY SEAWORLD S LEGAL FEES AND COSTS... - ii - :-cv-0 JSW JCS DEFENDANT S NOTICE OF MOTION AND MOTION FOR RULE SANCTIONS AND MEMORANDUM OF POINTS AND

4 Case :-cv-0-jsw Document Filed /0/ Page of 0 Cases TABLE OF AUTHORITIES Page(s) Anderson v. SeaWorld Parks & Entm t, WL 00 (N.D. Cal. Aug., )...,,,, Bird v. First Alert, Inc., WL 0 (N.D. Cal. June, )... Estate of Blue v. Cty. of L.A., F.d (th Cir. )... Christian v. Mattel, Inc., F.d (th Cir. 0)... City of E. St. Louis v. Circuit Court for Twentieth Jud. Circuit, St. Clair Cty., F.d (th Cir. )... Danvers v. Danvers, F.d 0 (th Cir. )... Davidson v. Kimberly-Clark Corp., F.d 0 (th Cir. )... Hendrix v. Naphtal, F.d (th Cir. )... Kendrick v. Zanides, 0 F. Supp. (N.D. Cal. )... Millett v. Experian Info. Sols., Inc., F. App x (th Cir. 0)... Mitchell v. Reg l Serv. Corp., WL 00 (N.D. Cal. Apr., )... Pfizer Inc. v. Superior Court, Cal. App. th... Smith v. Ricks, F.d (th Cir. )... Rules and Statutes Fed. R. Civ. P.... passim - iii - :-cv-0 JSW JCS DEFENDANT S NOTICE OF MOTION AND MOTION FOR RULE SANCTIONS AND MEMORANDUM OF POINTS AND

5 Case :-cv-0-jsw Document Filed /0/ Page of 0 SUMMARY OF ARGUMENT Plaintiffs counsel should be ordered to pay SeaWorld s reasonable attorneys fees and expenses incurred in defending this case, which is frivolous and improperly motivated. An attorney s signature on a filing certifies that, to the best of her knowledge formed after an inquiry reasonable under the circumstances, () it is not being presented for any improper purpose ; [and] () the factual contentions have evidentiary support. Fed. R. Civ. P. (b). Where this certification is false, sanctions run against the attorney and/or her law firm, including the attorneys fees resulting from the violation. Fed. R. Civ. P. (c). Plaintiffs counsel falsely certified all filings in this Court. They violated Rule (b)() because after SeaWorld s first motion to dismiss revealed the fatal flaws in the First Amended Complaint (FAC) of Anderson and Conway, neither of whom alleged reliance on specific statements or an intent to make future purchases, Plaintiffs counsel reinvented the case to avoid dismissal, adding new plaintiffs and false allegations that Anderson, Nelson, and Morizur all made SeaWorld purchases in reliance on specific statements and would consider going back and making future purchases. Discovery revealed the truth. Anderson did not rely on any SeaWorld statement; he bought a SeaWorld plush for his sister because he thought she would like it, not because of anything SeaWorld said. Nelson did not even buy the ticket her whole case is based on, nor was she even exposed to the SeaWorld statements she alleged reliance upon prior to her SeaWorld visit. Morizur repeatedly testified in her deposition that she did not want monetary restitution. Finally, no Plaintiff has an affirmative intent to purchase future SeaWorld tickets or merchandise, and they thus all lack Article III standing for an injunction. Discovery also revealed that Plaintiffs counsel violated Rule (b)() with all filings because they brought and pursued this frivolous case for the improper purposes of gaining publicity, harassing SeaWorld, causing SeaWorld to spend large sums defending itself, and channeling confidential SeaWorld information to anti-seaworld advocacy group (and non-party) Earth Island Institute, which recruited Plaintiffs and REDACTED - iv - :-cv-0 JSW JCS DEFENDANT S NOTICE OF MOTION AND MOTION FOR RULE SANCTIONS AND MEMORANDUM OF POINTS AND.

6 Case :-cv-0-jsw Document Filed /0/ Page of 0 MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION This case was packaged as an effort to protect unwary consumers allegedly duped into purchasing SeaWorld tickets and merchandise based on false statements about SeaWorld s killer whales. Now, more than two and a half years into this lawsuit, it is SeaWorld and the Court who have been duped. Discovery unmasked the fiction: the entire case stands on a false foundation created to advance the anti-captivity agenda of the Earth Island Institute (EII), a non-party. Plaintiffs are not aggrieved consumers who sought out counsel to remedy real injuries. Instead, Plaintiffs counsel and EII manufactured this case and went looking for plaintiffs. They found two people who had no valid legal claims (Anderson and Conway) and filed an initial and First Amended Complaint (FAC). When SeaWorld s motion to dismiss showed that the FAC would fail, they recruited Nelson and Morizur. The proposed Second Amended Complaint (Prop. SAC), Second Amended Complaint (SAC) and Third Amended Complaint (TAC) fundamentally rewrote Anderson s story and added allegations about Nelson and Morizur that could survive dismissal at the pleading stage: that all three Plaintiffs were exposed to and relied on specific SeaWorld statements when making purchases and that they may make future purchases. These claims survived dismissal because the Court was required to assume the truth of the facts alleged. As discovery revealed, however, the facts alleged were false. As typically happens when allegations have no factual basis, Plaintiffs could not stick to the script, and the entire scaffolding supporting this frivolous case collapsed. Plaintiffs depositions were, in a word, damning. Anderson admitted he did not rely on any SeaWorld statement in making his purchase. Nelson admitted she did not buy the ticket her whole case is based on. Morizur testified that she does not want monetary restitution. And all Plaintiffs admitted they have no intent to make future SeaWorld purchases. None of these facts required extensive investigation by counsel to confirm. All that was needed were simple, foundational questions e.g., who actually bought the ticket? Plaintiffs counsel either knew the allegations were false, or should have known. But they plowed forward, undeterred, regardless of the actual facts. They required SeaWorld to undertake costly motion practice and discovery (which is ongoing) to prove what Plaintiffs counsel had an obligation to - - :-cv-0 JSW JCS DEFENDANT S NOTICE OF MOTION AND MOTION FOR RULE SANCTIONS AND MEMORANDUM OF POINTS AND

7 Case :-cv-0-jsw Document Filed /0/ Page of discover with a modicum of diligence: no plaintiff has a cognizable claim. Discovery also revealed that this frivolous case was brought and pursued for improper purposes. Covington has allowed EII s agenda to control the lawsuit to gain publicity, to harass SeaWorld and run up litigation costs, and to attempt to gather information for an anti-seaworld campaign. REDACTED Plaintiffs issued document requests unrelated to the specific statements 0 Plaintiffs claimed to have relied on, but that aligned with EII s anti-captivity agenda (e.g., orca breeding). Covington then tried to designate EII employees who had already trumpeted their involvement in recruiting Plaintiffs in the media as experts who could gain access to SeaWorld s documents designated confidential under the Protective Order even though none of them has particularized knowledge relevant to the issues in this case. Filing a complaint in federal court is no trifling undertaking. An attorney s signature on a complaint is tantamount to a warranty that the complaint is well grounded in fact and that it is not filed for an improper purpose. Christian v. Mattel, Inc., F.d, (th Cir. 0). Plaintiffs counsel s warranties were false. Not only have they forced SeaWorld to incur significant fees for a case that never should have been brought, they misled the Court. The only reason this case has lasted this long is because, at the motion to dismiss stage, the Court had to assume the truth of Plaintiffs allegations. Plaintiffs counsel abused the judicial trust inherent in that requirement with false factual allegations that any minimal inquiry would have prevented. SeaWorld thus requests that the Court order Plaintiffs counsel to reimburse SeaWorld for its fees and costs incurred for this improperly-motivated, frivolous case. II. BACKGROUND SeaWorld incorporates by reference the procedural history from its Background section of its Motion for Summary Judgment (ECF ). The following facts also are relevant here: A. The Plaintiffs Anderson. In April, Anderson purchased tickets to SeaWorld San Diego. TAC (ECF - - :-cv-0 JSW JCS DEFENDANT S NOTICE OF MOTION AND MOTION FOR RULE SANCTIONS AND MEMORANDUM OF POINTS AND

8 Case :-cv-0-jsw Document Filed /0/ Page of 0 ). He bought the tickets because he and his co-worker planned to visit relatives in San Diego, and were looking for things to do there. Simpson Decl. Ex. A (Anderson Dep.) :-:. Anderson visited SeaWorld San Diego in June. TAC. While there, he bought a Shamu plush toy for his sister. Id.; Simpson Decl. Ex. A :-; :-. He bought the plush because he enjoyed the Shamu show, he knew his sister had seen similar orca shows before and she liked them, he wanted to buy his sister a present, and it was big, soft, something that a girl would like, and he thought she would get a kick out of the stuffed orca. Id. :-:; :-. Eight months later, on February,, Anderson was invited to complete an online survey based on his SeaWorld trip. Id. Ex. A, at Ex.. Mark Palmer of Earth Island was behind the survey, for which Anderson received a $00 gift card. Id. Ex. A :-; :-:. After Anderson completed the survey, Palmer called Anderson and told him that his survey answers made him a good match for Palmer s project, that Palmer was going to send Anderson a movie he wanted him to watch, and that they would meet afterward. Id. :-; :-; :-:; :-; :-. The movie was Blackfish. Id. :-; see also id., Ex. A at Ex. (Palmer to Anderson I hope you ve had a chance to view the DVD of Blackfish, and thanking him for his participation in our project ). Palmer met with Anderson at the offices of Covington and Burling in March. Id. Ex. A :-:. In that meeting, Palmer asked Anderson whether he had read or heard anything about the treatment of orcas at SeaWorld before watching Blackfish, to which Anderson responded, no, I had not seen or heard of that before now. Id. 0:-0:. Palmer raised the issue of separation of mother orcas and calves, which Anderson had never thought about before the meeting, and was not thinking about when he went to SeaWorld in. Id. :-:; :- 0. Palmer also told Anderson that SeaWorld made claim[s] that their orcas live just as long as the ones that are in the wild but there s been research done where that statement is not true. Id. : -. Anderson never researched orca lifespans prior to that meeting and was not thinking about it when he went to SeaWorld in. Id. :-. Palmer asked for Anderson s help with a project a planned lawsuit against SeaWorld and introduced him to Christine Haskett, a partner at Covington. Id. 0:-; :-; :-0:. Shortly thereafter, on - - :-cv-0 JSW JCS DEFENDANT S NOTICE OF MOTION AND MOTION FOR RULE SANCTIONS AND MEMORANDUM OF POINTS AND

9 Case :-cv-0-jsw Document Filed /0/ Page of 0 April,, Haskett sent Anderson an engagement letter, which he signed on April 0,. Id. :-; id. Ex. A at Ex.. Three days later, on April,, Covington filed the original complaint on Anderson s behalf. ECF -. Nelson. Nelson visited SeaWorld San Diego in August. TAC. Her husband purchased her ticket. Simpson Decl. Ex. B (Nelson Dep.) :-. Shortly after her visit, on August,, she wrote a negative review about SeaWorld on the website Yelp. Id. :-:; :-:; Exs. & (Yelp Review). That review complained about the price of food, the size of the tanks, and about SeaWorld being a profit motivated company, but did not mention any misstatements by SeaWorld about life spans or calf separation. Id. :-:; :-:; :-:; :-; Exs. &. Nelson s progression to plaintiff status began when Laura from EII contacted Nelson about her Yelp review. Id. :-:. Laura ed Nelson in November, and Nelson had a call with Palmer and Haskett in early. Id. :-:; 0:-:; :-; Ex.. Palmer said the purpose of the call was to discuss with [Nelson] our lawsuit, answer any questions [she] ha[d], and ask some questions from [her]. Id. :-; Ex.. Before then, Nelson had never considered suing SeaWorld. Id. :-. On February,, Haskett sent Nelson an engagement letter, which she signed. Id. 0:-; Ex.. Nelson first officially appeared as a Plaintiff in the SAC, filed on August,, without Nelson having reviewed it. SAC (ECF ); Simpson Decl. Ex. B :-:. Morizur. Morizur visited SeaWorld San Diego in April. TAC. In a conversation with a SeaWorld trainer, Morizur asked why all the dorsal fins on the orcas in captivity happened to be bent over, and the trainer responded that it happens because the dorsal fin weighs too much, and that it happens often in the wild, and she also mentioned along the lines that the orcas are healthy and happy and well taken care of at SeaWorld. Simpson Decl. Ex. C (Morizur Dep.) :-. Three years later, in late, David Phillips of EII ed Morizur and asked if [she] would be interested or able to be a plaintiff in this case due to having visiting SeaWorld in the past four years[.] Id. :-:; :-. Morizur responded that she was interested [b]ecause [she] had been to SeaWorld in the past four years, and that is when she got into contact with [her] lawyers from Covington. Id. :-. Morizur discussed becoming a plaintiff in a call with Haskett on - - :-cv-0 JSW JCS DEFENDANT S NOTICE OF MOTION AND MOTION FOR RULE SANCTIONS AND MEMORANDUM OF POINTS AND

10 Case :-cv-0-jsw Document Filed /0/ Page 0 of February,. Id. :-; ECF -. On February, Haskett sent Morizur an engagement letter, which she signed in June of. Id. :-0:; Ex.. Morizur appeared as a Plaintiff for the first time in the SAC, filed August,. SAC. Morizur has no recollection of reviewing the SAC before it was filed. Simpson Decl. Ex. C :-. B. Earth Island/International Marine Mammal Project REDACTED Id. Ex. C, at Ex. 0. EII runs the International Marine Mammal Project (IMMP), which describes itself as leading the global effort to end commercial exploitation of cetaceans by sea parks. Simpson Decl. Ex. D at (EII/IMMP website). Phillips is the Executive Director of IMMP, Palmer is the Associate Director, and Laura Bridgeman is the Campaign and Communications Specialist. Id. at - (Staff page). Josh Floum is the president of EII. Id. at (EII Board of Directors Page). Earth Island and IMMP admit that they are part of, and initiated, this lawsuit. See id. at (IMMP website) ( We are part of a lawsuit against SeaWorld s false advertising and unfair business practices. ); Id. Ex. E (San Diego Times Article) (Palmer: our suit is primarily seeking to reform SeaWorld s promotion, marketing and communication ; Our class is different and set up specifically to seek an injunction ; we are filing in state rather than federal court ). IMMP reportedly helped prepare the suit. Id. Another article stated that this case was organized by EII. Id. Ex. F (Orlando Sentinel Article). In that article, Palmer admitted seeking out potential plaintiffs. Id. In a January, thank you note for the many donations and help from our supporters, Palmer listed as one of IMMP s Key Accomplishments Initiating pioneering lawsuit against SeaWorld, fighting off two efforts by SeaWorld attorneys to dismiss the case. Id. Ex. D at (IMMP Blog) (emphasis added). C. Plaintiffs Current Claims and Allegations Anderson has UCL and FAL claims based on his alleged June purchase of a Shamu plush in reliance on statements on SeaWorld s website that orca lifespans in captivity are comparable to orca lifespans in the wild and that SeaWorld does not separate calves from mother orcas. TAC. Nelson has UCL, FAL, and CLRA claims based on her alleged August ticket purchase in reliance on statements on SeaWorld s website as well as on television that it - - :-cv-0 JSW JCS DEFENDANT S NOTICE OF MOTION AND MOTION FOR RULE SANCTIONS AND MEMORANDUM OF POINTS AND

11 Case :-cv-0-jsw Document Filed /0/ Page of 0 did not separate calves and mothers, and that its captive orcas had similar lifespans to orcas in the wild. Id.. Morizur has a UCL unfair claim based on her April purchase of a Shamu plush, allegedly in reliance on SeaWorld employee statements that collapsed dorsal fins are normal, and also equally common in the wild and that captivity in general does not harm orcas. Id.. All plaintiffs allege they may consider making future SeaWorld purchases. Id. -. Plaintiffs seek injunctive relief and restitution. Id.. D. Discovery, Summary Judgment, and Service of Rule Motion Plaintiffs broad discovery requests sought documents related to topics such as SeaWorld s orca breeding program that no plaintiff alleged they relied on. See ECF - (Plaintiffs Document Requests) at Nos.,,. SeaWorld objected to such requests. See ECF (first discovery dispute letter); ECF (second discovery dispute letter); ECF - (listing disputed search terms, including terms relating to breeding). On September,, Magistrate Judge Spero held a discovery hearing on the dispute and ordered SeaWorld to run the search terms to which it had objected, including those about breeding, ECF, even though these terms required the review of approximately 0,000 electronic documents. See ECF at ; -0. On May,, the Court entered a Protective Order prohibiting distribution of Confidential discovery material beyond specific groups of people, including experts, defined as those with specialized knowledge or experience in a matter pertinent to the litigation who ha[ve] been retained by a Party or its counsel to serve as an expert witness or as a consultant in this action. ECF at, -0. On August,, Plaintiffs counsel designated Palmer, Floum, and Phillips of EII/IMMP as experts to whom Confidential SeaWorld material would be disclosed. ECF -. SeaWorld objected because, inter alia, they have no pertinent expertise, and the designation was an improper attempt to funnel confidential information to EII for its anti-seaworld campaign. Simpson Decl. Ex. G (Simpson letter). Following an August st meet and confer, Plaintiffs apparently abandoned this issue and only resurrected it after the Rule Motion was served. Id.. Plaintiffs were deposed on August 0 (Morizur), August (Anderson), and September (Nelson). Id. -. On October 0,, SeaWorld filed a motion for summary judgment, ECF - - :-cv-0 JSW JCS DEFENDANT S NOTICE OF MOTION AND MOTION FOR RULE SANCTIONS AND MEMORANDUM OF POINTS AND

12 Case :-cv-0-jsw Document Filed /0/ Page of, and a motion to stay discovery, ECF. On October,, it served a copy of this motion and accompanying declarations and exhibits on Plaintiffs counsel. Simpson Decl.. This Motion has been slightly revised to account for updates since it was originally drafted. Id. III. LEGAL STANDARD An attorney s signature operates as a certification that, based on an inquiry reasonable 0 under the circumstances, the filing is not being presented for any improper purpose, and factual contentions have evidentiary support[.] Fed. R. Civ. P. (b). See also Smith v. Ricks, F.d, (th Cir. ) ( Rule imposes a duty on attorneys to certify by their signature that the pleading or motion is well-grounded in fact, has a colorable basis in law, and is not filed for an improper purpose. ) (citations omitted). The Court can sanction those who sign and present to the court a pleading that is frivolous, legally unreasonable, or without factual foundation, or is brought for an improper purpose. Estate of Blue v. Cty. of L.A., F.d, (th Cir. ). If, after notice and a reasonable opportunity to respond, the court determines that Rule (b) has been violated, the court may impose an appropriate sanction on any attorney, law firm, or party that violated the rule, including an award of reasonable attorney s fees and other expenses directly resulting from the violation. Fed. R. Civ. P. (c). IV. PLAINTIFFS COUNSEL VIOLATED RULE A. Plaintiffs Counsel Misled the Court to Keep the Case Alive Anderson. Anderson s claims in the FAC failed because he did not allege reliance on specific SeaWorld statements when buying his tickets and did not allege an ongoing injury or intent to purchase additional tickets. See ECF - (FAC) ; Anderson v. SeaWorld Parks & Entm t, WL 00, at *, *, *0 (N.D. Cal. Aug., ). After SeaWorld s motion to dismiss the FAC made clear that Anderson s case would fail, Plaintiffs counsel completely changed Anderson s story and recruited two new plaintiffs. Anderson now pursues claims based on the purchase of a Shamu plush toy (not tickets) in alleged SeaWorld moved to dismiss the FAC on September,. ECF. Shortly thereafter, EII and Covington recruited Nelson and Morizur. See supra at (recruited in late ). Plaintiffs counsel moved for leave to add Nelson and Morizur on April,. ECF. - - :-cv-0 JSW JCS DEFENDANT S NOTICE OF MOTION AND MOTION FOR RULE SANCTIONS AND MEMORANDUM OF POINTS AND

13 Case :-cv-0-jsw Document Filed /0/ Page of 0 reliance on lifespan and separation statements he read on SeaWorld s website before his June visit (not a generalized campaign ). ECF (redline of proposed SAC) ; SAC ; TAC. And now he may consider making future SeaWorld purchases. TAC. These amended allegations, however, are a total farce. As the chart below shows, Anderson did not buy the plush in reliance on SeaWorld statements about lifespan or separation (he had not even thought of those issues before meeting Palmer in, and bought the plush because his sister would like it, not because of anything SeaWorld said). Nor will he buy future SeaWorld tickets or merchandise, because he would only consider such purchases if SeaWorld makes the tanks larger, which Plaintiffs have not asked the Court to order. See id.. Allegations/Required by Court Deposition Testimony (Simpson Decl. Ex. A) [A]fter purchasing the tickets to SeaWorld San Diego [in April ] but prior to visiting the park [in June ], Mr. Anderson read on SeaWorld s website that orca lifespans in captivity are comparable to orca lifespans in the wild and that SeaWorld does not separate calves from mother orcas. (TAC ; see also SAC ; Prop. SAC (ECF -) )) [I]n reliance on the specific representations SeaWorld made on its website [about lifespans and calf separation], Mr. Anderson paid SeaWorld San Diego s Shamu Store approximately $ to purchase a Shamu Plush (a stuffed orca souvenir). (TAC ; Q: At this point in time at this first meeting [with Palmer in March ], had you ever gone to the SeaWorld website to read up about care of their animals? A: Not until after I met with him. (0:-) *************************** Q: Now, up to this point where you re sitting at Covington with Mr. Palmer [March ], had you ever thought about the separation of calfs [sic] from mothers at SeaWorld? A: At Sea no. Q: So let me ask you, up to the point in time where he raised this with you at the meeting [March ], that the orcas at SeaWorld don t live as long as orcas in the wild, had you ever researched that prior to meeting? A: No. Q: Is that so that s not something you were thinking about while you were at SeaWorld in, right? A: No. (:-; :-; :-) Q: [T]ake me back to that ten minutes you spent buying that souvenir for your sister.. What were you thinking about? A: Many different things. Mainly, the show we just saw. Souvenir of SeaWorld. I enjoyed the show. I knew that she had seen similar orca shows before and she liked them, so - - :-cv-0 JSW JCS DEFENDANT S NOTICE OF MOTION AND MOTION FOR RULE SANCTIONS AND MEMORANDUM OF POINTS AND

14 Case :-cv-0-jsw Document Filed /0/ Page of 0 Allegations/Required by Court Deposition Testimony (Simpson Decl. Ex. A) see also SAC ; Prop. SAC ) [A] plaintiff must allege facts showing an intent to purchase a product in the future, in order to show he or she has standing to seek injunctive relief. ECF 0 at ; Anderson, WL 00, at *. The Ninth Circuit s decision in Davidson v. Kimberly-Clark Corp., F.d 0 (th Cir. ) is consistent with this Court s opinion and did not dispense with the requirement that a plaintiff must have a plausible intent to make future purchases. Q: So except for those things, was there anything else that was motivating you to buy that souvenir? A: It was big. It was soft. It was a stuffed animal, something that a girl would like. Q: Anything else? A: I can t think of anything at the moment. (:-:) Q: So if you think a park mistreats its animals, you re not going to buy a ticket to that park? A: If I think if after research that I gathered about that, yes, I would not buy a ticket to the park. Q: do you believe as you sit here today that SeaWorld mistreats its animals? A: Yes. In my definition, yes. Q: Which means you will not purchase a ticket to SeaWorld? A: Not until they change their policies and practices. Q: What would they have to do? A: The captivity, the small pools, that they get diseases earlier than on the fish in the wild. Q: So oh, so under certain circumstances it might be okay for SeaWorld to keep its whales in captivity, as far as you re concerned? A: Bigger pools. Q: You won t go back as long as the pools are the same size they are now, right? A: Correct. (:-:) The truth that Anderson did not rely on any SeaWorld statement when he bought the plush and that he has no current intent to purchase tickets or merchandise are readily ascertainable facts that Plaintiffs counsel should have uncovered in pre-filing due diligence. Plaintiffs counsel either knew or should have known these facts when filing the motion for leave to file the SAC, the SAC, and the TAC, and thus violated Rule (b)(). Nelson. Nelson s allegations that () she purchased a SeaWorld ticket () after seeing and relying on SeaWorld statements about lifespan and calf separation on television and on SeaWorld s - - :-cv-0 JSW JCS DEFENDANT S NOTICE OF MOTION AND MOTION FOR RULE SANCTIONS AND MEMORANDUM OF POINTS AND

15 Case :-cv-0-jsw Document Filed /0/ Page of 0 website and () that she may purchase future SeaWorld tickets (ECF - ; SAC ; TAC ) are all false. Her husband, not Nelson, purchased the ticket. She had no evidence of exposure to SeaWorld statements on television or on SeaWorld s website prior to her visit, and she is against the exhibition of animals for money. Allegations/Required by Court Deposition Testimony (Simpson Decl. Ex. B) In August, Ms. Nelson purchased a ticket to SeaWorld San Diego, from the ticket counter at the park s entrance. (TAC ; see also SAC ; Prop. SAC ) Prior to purchasing her ticket, Ms. Nelson had seen SeaWorld s statements, on its website as well as on television, disputing the allegations of mistreatment of the orcas raised in Blackfish. In particular, Ms. Nelson had seen SeaWorld s claims that it did not separate calves and mothers, and that its captive orcas had similar lifespans to orcas in the wild. (TAC ; see also SAC ; Prop. SAC ) Q: Ms. Nelson, when you went to SeaWorld, who actually purchased the tickets? A: My husband. Q: If he used the credit card, would it be a credit card in his name only or a credit card in your name and his name? A: I don t think we have any credit cards in both of our names, so it would have been just his. (:-:) Calf Separation. Q: Do you recall any of the media that you identified in which SeaWorld disputed Blackfish do you recall any of that making reference to the subject [of] separation of orca mothers from orca calves? A: Uh-huh, yes. Q: And what do you recall them saying about that? A: That it was a detrimental part of SeaWorld s practices with the orcas. Q: SeaWorld said that or Blackfish said that? A: I don t know. Well, I m sure it wasn t SeaWorld. Q: Okay. What did SeaWorld say about it? A: I don t know. (:-) (emphasis added) *************************** Q: And where was this statement [about calf separation] made by SeaWorld? A: I don t recall. Q: Do you recall whether it was on TV? A: I don t recall. Q: Whether it was on the internet? A: I don t know for sure. Q: You have no idea where it was made? A: No. (:-:) (emphasis added) :-cv-0 JSW JCS DEFENDANT S NOTICE OF MOTION AND MOTION FOR RULE SANCTIONS AND MEMORANDUM OF POINTS AND

16 Case :-cv-0-jsw Document Filed /0/ Page of 0 Allegations/Required by Court Deposition Testimony (Simpson Decl. Ex. B) Relying in good faith on SeaWorld s claims countering Blackfish, Ms. Nelson decided to purchase a ticket and visit the park. (TAC ; see also SAC ; Prop. SAC ) [A] plaintiff must allege facts showing an intent to purchase a product in the future, in order to show he or she has standing to seek injunctive relief. ECF 0 at ; Anderson, WL 00, at *. As their past decision to purchase SeaWorld tickets and/or merchandise demonstrates, Plaintiffs enjoy wildlife and the kind of animal entertainment and Lifespans. Q: Do you recall seeing television commercials about that subject [lifespans] before you went to SeaWorld? A: I don t. (:-) *************************** Q: As to the statement by SeaWorld about orcas in captivity living as long as orcas in the wild, you say you saw that in the media. What media did you see that in? A: Well, I don t know for sure, but I know that I have seen articles in the Los Angeles Times, which we do take. So it might have been there, and then it also might have been something online. Q: When you say something online, where would this something online have been? A: As to a specific site, I m not sure. Q: Was any of this on the SeaWorld website? A: I have no idea. (:-) (emphasis added) A: I haven t ever seen anything that I felt like I could rely upon. (:-) (emphasis added) Q: Well, what is it that is unethical about what they do at SeaWorld? A: In my opinion, they enslave animals and make them do tricks Q: Are you against businesses having animals in which they present to the public and have them do tricks? A: I m generally against it. Q: So would it be fair to say that you re generally against the exhibition of animals for money? A: That would be fair. (:-:) Q: Is it true that you, Kelly Nelson, enjoy the kind of animal entertainment and education SeaWorld provides? A: No. (:-:) - - :-cv-0 JSW JCS DEFENDANT S NOTICE OF MOTION AND MOTION FOR RULE SANCTIONS AND MEMORANDUM OF POINTS AND

17 Case :-cv-0-jsw Document Filed /0/ Page of 0 Allegations/Required by Court Deposition Testimony (Simpson Decl. Ex. B) education SeaWorld provides. (TAC ; see also SAC 0; Prop. SAC ) Before alleging claims on behalf of Nelson, Plaintiffs counsel failed to ask the most fundamental question who bought the ticket or deliberately misrepresented the answer. Either way, Nelson s claims are baseless because she has no injury under Article III or state law. See Bird v. First Alert, Inc., WL 0, at *- (N.D. Cal. June, ) (no Article III standing or CLRA economic injury for wife where husband bought product); Millett v. Experian Info. Sols., Inc., F. App x (th Cir. 0) (plaintiff-wife had no standing because she was not the product purchaser). Nelson s claims also are frivolous because without exposure to SeaWorld statements, she obviously could not have relied on them. Pfizer Inc. v. Superior Court, Cal. App. th, (0) ( [O]ne who was not exposed to the alleged misrepresentations and therefore could not possibly have lost money or property as a result of the unfair competition is not entitled to [relief]. ). As with Anderson, the truth that Nelson has no standing because she did not buy her ticket, was not exposed to SeaWorld statements before her husband s purchase, and has no intent to buy future SeaWorld tickets was known or should have been known to Plaintiffs counsel when filing the motion for leave to file the SAC, the SAC and the TAC, in violation of Rule (b)(). Morizur. Morizur s one surviving claim fails because she has no valid claims for relief. The TAC seeks restitution and an injunction, TAC, but Morizur testified under oath that she does not want restitution, and that she does not plan on making future SeaWorld purchases: Allegations/Required by Court Deposition Testimony (Simpson Decl. Ex. C) Plaintiffs pray for a judgment: c) Awarding restitution to Plaintiffs in their individual capacities[.] (TAC ; see also SAC ; Prop. SAC ) Q: Are you asking the court to give you any money? A: As I stated before, I don t care about the money, no I m not. I m not in this for the money at all. (:-) (emphasis added) *************************** - - :-cv-0 JSW JCS DEFENDANT S NOTICE OF MOTION AND MOTION FOR RULE SANCTIONS AND MEMORANDUM OF POINTS AND

18 Case :-cv-0-jsw Document Filed /0/ Page of [A] plaintiff must allege facts showing an intent to purchase a product in the future, in order to show he or she has standing to seek injunctive relief. ECF 0 at ; Anderson, WL 00, at *. Q: Just so the court understands, though, how much money in dollars and cents do you want the court to order you? A: 0 point 00 dollars. (:-:) (emphasis added) A: Right now I do not plan on visiting SeaWorld and buying a ticket there, buying any merchandise currently. (:-) 0 Any reasonable inquiry would have revealed that Morizur s relief claims lacked factual support. Plaintiffs counsel thus violated Rule (b)() with the proposed SAC, the SAC, and the TAC. B. Plaintiffs Counsel Pursued Frivolous Claims For Improper Purposes Rule is violated if a filing is presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the costs of litigation. Fed. R. Civ. P. (b)(). See also Mitchell v. Reg l Serv. Corp., WL 00, at * (N.D. Cal. Apr., ) ( An improper purpose includes personal or economic harassment, unnecessary delay and increased expense in litigation. ). Th[e] Court may make a finding of improper purpose after conducting its own review of the facts and the law, and where there is no legal or factual basis for a claim, improper purpose may be deduced. Id. at * (citation omitted). Plaintiffs counsel clearly brought and pursued this case for improper purposes. Covington and EII recruited puppet plaintiffs, for whom they pull the strings REDACTED Covington was already preparing the case before Palmer found Anderson in. See Simpson Decl. Ex. A :- (Covington had a handle on the case already ); see also id. Ex. E (San Diego Times Article) (quoting Palmer stating in April that the case had been in the works for more than six months, i.e., since October ); ECF - (Haskett representing that Covington began preparing lawsuit and drafting complaint in December ). Palmer is the person behind the survey that led to Anderson being a plaintiff. Simpson Decl. Ex. A :-; :-. He also orchestrated the injury by having Anderson watch Blackfish before their meeting at Covington. Id. :-:; :-:; :- - - :-cv-0 JSW JCS DEFENDANT S NOTICE OF MOTION AND MOTION FOR RULE SANCTIONS AND MEMORANDUM OF POINTS AND

19 Case :-cv-0-jsw Document Filed /0/ Page of 0. Palmer and/or Haskett planted the idea with Anderson that SeaWorld made misrepresentations about lifespans and separation; Anderson had never considered these topics before their meeting. See id. :-:; :-:; :-; :-0. Without Covington and EII, Nelson never would have been a plaintiff, either. She never thought about suing SeaWorld until after she her call with EII. Id. Ex. B :-. Nelson had complaints about SeaWorld, but over the cost of food and the fact that the whales did tricks. Id. Exs. & (Yelp review). In the detailed Yelp review, she said nothing about lifespan or separation or that she had been misled by SeaWorld in any way. Id. These subjects only became issues for her to sue over after talking with Palmer and Haskett. Similarly, Morizur admitted that her counsel sought her out. Id. Ex. C :- ( Q: What was the reason you picked this law firm? A: I didn t pick it. Q: Who picked it? A: I don t know who picked it. They came in contact with me. Q: So the law firm contacted you? A: Yes. ). Three years elapsed after Morizur s SeaWorld visit (when she was allegedly lied to), with no retention of counsel or suit. That all changed when she was recruited by EII and Covington. Id. :-:. Covington and non-party EII advertised this as their case in the media and the internet with Donate buttons close by. See Simpson Decl. Ex. D at - -. REDACTED Id. Ex. C, at Ex.. REDACTED. Id. Clearly, EII is the real client for whom Covington is working. See Id. Ex. A :- (EII is a Covington client). Indeed, neither Nelson nor Morizur could even recall reviewing the SAC (which added them as plaintiffs) before it was filed. Id. Ex. B :- :; Ex. C :-. This also explains the document requests seeking information about unrelated topics and their attempt to channel that material to EII with spurious expert designations. These facts, combined with the patently false allegations, establish, inexorably, that this case was invented and pursued by Covington for the improper purposes of publicity, harassing SeaWorld and causing it to incur significant fees, and gaining donations and access to confidential material for EII, all in violation of Rule (b)(). - - :-cv-0 JSW JCS DEFENDANT S NOTICE OF MOTION AND MOTION FOR RULE SANCTIONS AND MEMORANDUM OF POINTS AND

20 Case :-cv-0-jsw Document Filed /0/ Page of 0 V. PLAINTIFFS COUNSEL SHOULD BE ORDERED TO PAY SEAWORLD S LEGAL FEES AND COSTS Plaintiffs counsel should be sanctioned for violating Rule (b)() by filing and pursuing the case for improper purposes, see Danvers v. Danvers, F.d 0, 0 (th Cir. ) (affirming sanctions where plaintiff sued ex-wife to harass her and increase her litigation costs in case that lacked merit), and for violating Rule (b)() by filing the proposed SAC, the SAC, and the TAC with plainly false standing allegations, see, e.g., City of E. St. Louis v. Circuit Court for Twentieth Jud. Circuit, St. Clair Cty., F.d, - (th Cir. ) (sanctions affirmed where plaintiffs had no standing); see also Hendrix v. Naphtal, F.d, -00 (th Cir. ) (sanctions affirmed; basic interview should have elicited facts inconsistent with pleading). Sanctions may include an order directing payment of the reasonable attorney s fees and other expenses directly resulting from the violation of Rule (b). Fed. R. Civ. P. (c)(). All of SeaWorld s fees and expenses in this Court directly resulted from Plaintiffs counsel s violations. Without the improperly-motivated and frivolous filings, there would be no case. Instead, SeaWorld incurred substantial legal fees, including briefing three motions to dismiss and burdensome discovery including written discovery, document production, dispute conferences, and depositions of Plaintiffs only to find out the case never should have been filed. As of Sept. 0,, SeaWorld has incurred $,,.. See Simpson Decl. 0; Iser Decl. ; Hemenway Decl.. Ordering Plaintiffs counsel to pay SeaWorld s fees will deter similar future misconduct. Warnings are insufficient. Plaintiffs sophisticated counsel knew of the case s flaws through SeaWorld s motions to dismiss, and the Court only allowed further amendment to avoid dismissal if counsel could do so in good faith. See Anderson, WL 00 at *,. Such admonitions were ignored. Absent a large sanctions award, they may continue to recruit improper plaintiffs not actually injured by SeaWorld to harass SeaWorld publicly and economically and abuse the discovery process. See Kendrick v. Zanides, 0 F. Supp., - (N.D. Cal. ) (ordering sanctions for all defense fees and costs). SeaWorld s Motion for Rule Sanctions should be granted, and Plaintiffs counsel ordered to pay its fees and costs, for which it will submit documentation at the Court s direction. - - :-cv-0 JSW JCS DEFENDANT S NOTICE OF MOTION AND MOTION FOR RULE SANCTIONS AND MEMORANDUM OF POINTS AND

21 Case :-cv-0-jsw Document Filed /0/ Page of 0 Dated: December, NORTON ROSE FULBRIGHT US LLP By: /s/ John M. Simpson JOHN M. SIMPSON Attorneys for Defendant - - :-cv-0 JSW JCS DEFENDANT S NOTICE OF MOTION AND MOTION FOR RULE SANCTIONS AND MEMORANDUM OF POINTS AND