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The guys discuss why the Blackfish documentary may have led to a class action lawsuit against SeaWorld for fraud.

Full Podcast Transcript

NASIR: Welcome to our Legally Sound Smart Business podcast where we cover business in the news and add our legal twist. My name is Nasir Pasha.

MATT: And I’m Matt Staub.

NASIR: Hope you guys had a good weekend and are ready for probably the most important news story that you’ll be hearing today.

MATT: In your time, when you lived in San Diego, you had the SeaWorld unlimited pass every single year.

NASIR: Yeah.

MATT: I think you bought multiple passes just because you wanted to lay out on the seats and take up multiple spots.

NASIR: I realize you’re joking now but, one year, we had passes because my wife’ nephew was in town and he loved going there. We went there and – I don’t know – to me, it was one of the most depressing places on earth, you know, as opposed to Disneyworld which is supposed to be the happiest.

MATT: There’s one in Florida and one in San Diego, is that right?

NASIR: No, I think there’s more, actually, than that.

MATT: In the US.

NASIR: Yeah, I think there’s more in the US, too. I think there’s one in San Antonio.

MATT: Oh, is there?

NASIR: Yeah. Yeah, I think the two main ones are Florida and San Diego though.

MATT: Okay. Yeah, because I’ve never been to the one in San Diego. I’ve driven by it a bunch of times. I’ve been to the one in Florida a long time ago. Yeah, I’m not the avid fan like you.

NASIR: No, okay. Actually, they have three. They have one in Orlando, San Antonio, and San Diego.

MATT: Okay.

NASIR: So, I guess those are the three we named.

MATT: Yeah. So, the firm almost covers all of those states. Maybe we can be part of this lawsuits that’s going on.

NASIR: Exactly.

MATT: Well, I guess, just to give a back story, I don’t know, I assume… have you seen the Blackfish documentary?

NASIR: I haven’t so it is kind of hard for me to be so opinionated. I am pretty opinionated about it but I don’t think I have a lot of facts that maybe that movie may actually demonstrate to back that up.

MATT: Yeah, I’ve seen it. It’s a pretty big piece against SeaWorld and just essentially the treatment of the animals there. If you think about it, who knows how much of that is true. If you think about it, just look at the size of the animals and look at the size of the tanks that they’re being held in and it kind of makes sense. Obviously, it would be in terms of size to be in the ocean and things like that. But the Blackfish documentary gained a lot of publicity, got a lot of traction. A lot of people were watching it and realizing that they don’t like SeaWorld anymore. I guess it never dawned on them previously.

NASIR: All of a sudden, yeah.

MATT: Yeah, it’s like, “Yeah, now that I think about it, I really don’t like this thing.” That was a huge thing that’s happened over the last couple of years and I know recently – I don’t know how recent or how long ago this has been going on but – I’ve seen commercials that SeaWorld has put out essentially saying that some of the things in that documentary or these allegations are not true. I don’t know the specifics.

NASIR: I just saw the commercial this morning, in fact. They were promoting the hashtag #askseaworld and and making some statements. For example, they were saying how studies have shown that the animals in captivity in our facilities live as long as others outside in the wild which is an exact opposite allegation to what I think other people are saying. But what’s interesting, they use this #askseaworld and, of course, it backfires on them online. You know, I read some of the comments and you mentioned the tank size. One of the comments was or one of the questions is, “Why is your parking lot ten times bigger than the sizes of your tanks?” So, I thought that was pretty funny.

MATT: Yeah. Obviously, they’re trying to do this new marketing campaign and the #askseaworld. I mean, really, how did they think that was going to go? I don’t know how some of these marketing people get paid where they can, “This will really win over our fans.”

NASIR: I think they were trying to copy McDonald’s because remember McDonald’s went through the same process. I don’t think it backfired with them. Maybe it did but they went through the aspect of, you know, “Ask us about how we process our food and what’s in our food,” and everything about the myth behind their chicken nuggets, et cetera.

MATT: Yeah. So, this is getting to the underlying lawsuit that’s been filed. It’s a class action lawsuit and this is pretty interesting. It’s a class action lawsuit against SeaWorld and it’s alleging unjust enrichment and fraud amongst other claims about essentially the details that are in that Blackfish documentary about how they’ve fraudulently been portraying that the animals are being properly taken care of or properly treated and, if the people that attend SeaWorld like yourself with the unlimited pass, if they knew about these things, they would have never bought the tickets in the first place. And so, that’s kind of the underlying claim of this class action. I guess the visitors pay as much as $235 per person which is a lot of money.

NASIR: What? That doesn’t seem right. I don’t remember paying that much but I don’t know.

MATT: For your unlimited pass.

NASIR: I think, for residents, maybe it might be different or maybe even Florida might be different, too.

MATT: Yeah.

NASIR: But, see, what’s interesting about this fraud allegation and unjust enrichment is that, at the end, it’s somewhat of a contract law-based legal issue because, basically, what they’re saying is that, “Okay. I’m going to your facility and I’m buying a ticket and that’s a contract. I’m paying you money to grant me admission.” The basis for my admission is that you’re treating the animals in a certain way. The thing is I don’t know if Blackfish actually alleged that they’re breaking the law because there’s ethics and there’s the law and sometimes they don’t always match. And so, maybe SeaWorld is not treating the animals very well but they’re still within the bounds of the law and that still may open them to liability if one of the premises of why I went there is because they said that they were treating their animals ethically.

MATT: Yeah, and that’s a key point here, I think, to this lawsuit. There’s breaking a state or federal law and then there’s ethics. And so, I mean, just because you’re unethical doesn’t mean that there’s fraud and so they have to prove some sort of law that’s being broken – like I said, either state or federal law – and this kind of plays into the ads that are coming out or the commercials that are coming out. SeaWorld is saying, “Hey, all these allegations – or at least some of these allegations – against us aren’t true. Here’s the facts.” If they’re lying about that or they’re misrepresenting those facts, then, yeah, you have a claim to stand on. But I don’t really know how this is going to go. SeaWorld has already come out and said, “This is just a baseless lawsuit from animal activists. We’re going to fight this and we’re going to win.” They at least think that they have a pretty strong case against this class action.

NASIR: I don’t know. If you’ve been to the zoo and these other places like SeaWorld, they do talk a lot about how they help the animals. Honestly, I do really believe that the people that are working there feel like they’re doing something good because they seem genuine to me. For example, when I went to SeaWorld in San Diego, I remember going to – I don’t know if it was the South Pole or the Polar exhibit – and there was just this huge glass aquarium with a bunch of penguins in it and they were packed to the brim. I understand that there are penguins that don’t mind being close to each other but it was so strange to me because I know these penguins didn’t fly here because it’s too far to fly and they don’t fly. But how did they get here and why are they here? And then, they’re mixed with different species. It just seems so strange to me and so I’m wondering, like, how is this helping animals? Were they captured and brought here? What’s the story? Why couldn’t they just be put in the wild? I don’t know the answers to those questions so it’s hard for me to have a strong opinion about that but just something seemed wrong about it, you know?

MATT: Yeah. I mean, I can answer some of those because I tried to do that – remember when I tried to open that zoo a couple of years ago?

NASIR: Oh, yeah, that’s right. They were going to make a movie about it, right? Like, “Staub and His Zoo” or something, I can’t remember.

MATT: Yeah. Well, you remember the Matt Damon movie? That was based off of what I was trying to do.

NASIR: Oh, I thought so. I wasn’t sure. You didn’t get the main part. You couldn’t play yourself, huh?

MATT: Yeah, they wanted to go with a more experienced actor, I guess.

NASIR: Oh, okay.

MATT: Not a bad call but, yeah, it’s tough to get animals. I didn’t want to have to steal any animals so I ended up not getting a lot. I wasn’t able to get a lot of them.

NASIR: You got a couple of rats and a cat and a dog.

MATT: Yeah. I was able to get a lot of birds.

NASIR: A lot of birds.

MATT: Some squirrels.

NASIR: Some earthworms.

MATT: Yeah. I guess the thing about this – going back to SeaWorld – these are killer whales. I always thought that was an interesting dynamic because you’re taking “killer whales” – I mean, that’s what they’re called – and putting them in this very small tank and having them perform in front of people.

NASIR: Yeah.

MATT: At the end of the day, they’re still killer whales. They probably are going to attack people. You didn’t see the Blackfish documentary, not to spoil it for you but, yeah, a couple of people got maimed and killed because the things these people are doing with these killer whales in the water and performing with them…

NASIR: For your entertainment.

MATT: It’s kind of crazy. Yeah, it’s kind of crazy when you think about it. This is pretty dangerous stuff and I think only a couple of times there’s been issues. I know there was definitely one from the documentary. There was an issue of one of the whales acting up and attacking one of the performers during a show in front of kids. But I think most of the occurrences happened during closed hours and stuff like that.

NASIR: Imagine the workers compensation insurance premiums that SeaWorld has to pay before that, you know? I mean, because an employer is obligated to protect its employees from injury and so forth. Some of you may be listening like, “How can an employer allow their employees to put themselves in such risk?” There are things like assumption of the risk and so forth that the employees may be able to waive, especially if they’re – I don’t know – I assume they have some kind of marine biology background – those that are a part of all that so they have an understanding of these animals that they’re dealing with. But, at the same time, it’s like the whole thing is just for entertainment and, back on the size of the tank, the problem is that no matter how big they make it, they can’t make it as big as the ocean, you know? So, no matter what, SeaWorld is kind of in a tough spot there because I’m sure those tanks are expensive to maintain and build but there’s no way that they can get it to a size that would be satisfactory to anyone.

MATT: Yeah, that’s a good point. There’s always going to be people having issues with that. With the documentary that came out – I think a couple of years ago – and now these. This was the second lawsuit, isn’t that right? There’s been two class actions.

NASIR: This was the class action. It followed another action directly suing SeaWorld just for its treatment of the animals, I believe.

MATT: Yeah. So, with all this going on, I mean, I wonder if SeaWorld’s going to be able to stick around.

NASIR: I don’t think so. I honestly think that era is over. I don’t see it going forward because, even if they solve the legal issues, people aren’t going to be happy after this, you know?

MATT: Yeah. Let’s say all these lawsuits going swimmingly for them, they still aren’t going to have customers showing up at the door because they’ve seen the documentary, seen all this negative stuff, and their minds have changed on it. That’s my prediction as well as within the next decade it’s going to shut down shop.

NASIR: I do have good fond memories of it, I have to be honest. Because, when I’m with my wife’s nephew, I mean, he had so much fun. It was his favorite spot. I think one summer he went five or six times and just went to the show every time. Kids have fun. There’s definitely entertainment but I don’t think we’ll be seeing that in the next generation.

MATT: Yeah, I mean, it pretty much is for kids. You’re one of the only adults I know that really loves SeaWorld.

NASIR: I did like the wild animal park which is now called, I think, what is it? Safari? I don’t remember. What is it called?

MATT: Oh, in San Diego? Yeah, I haven’t been there.

NASIR: You should really go. I don’t know how they treat their animals but assuming they do treat them well.

MATT: Well, in the episode a couple of weeks ago when you said you used to give out the cease and desist letters to kids going to ice cream trucks for the copyrighted music, I forgot also too you used to sprint in in front of SeaWorld shows to the front row, lay out, and not allow any kids to sit there and parents were getting upset.

NASIR: Well, speaking of, we’re interviewing the Sno Kone Joe owner right on Wednesday.

MATT: Yes.

NASIR: And that’s going to be a very interesting interview because, when we reported it, we reported, you know, very one side of the story as far as how the media was portraying it. But, I think, after speaking with him, I think a lot of our audience members are going to be surprised to hear what the real truth is and some of the issues that he’s dealing with that, frankly, any small business owner can encounter in their own right so a lot of lessons, hopefully, will be learned that day.

MATT: Yeah, it’s kind of similar in a way to the SeaWorld issue but not in the fact that his side of the story is actually truthful and good. But SeaWorld, they have one side of the story as well, but yeah…

NASIR: So, check that out on Wednesday. That’s a follow-up from our episode, I think it was two weeks from today, I believe, if I recall correctly.

MATT: Sounds about right.

NASIR: Sounds about right. All right. I think that’s it on my end, unless you have anything else to add about SeaWorld. I’m actually somewhat happy that SeaWorld is in this path right now.

MATT: You’re happy, huh?

NASIR: I just remembered seeing those penguins and those dolphins and those whales. I’m like, “How did they get here? Why are they here? Just for our entertainment purposes,” and I felt bad being there, you know? I’m not saying it wasn’t fun. It was very interesting to see these, you know, great, huge animals but…

MATT: Yeah, there’s always – at least in spots on the ocean – there’s always whale watching season so, if you really want to see it, just go to those spots and you can see a whale.

NASIR: Absolutely. If you’re in San Diego, in lieu of going to SeaWorld, go whale watching. Just make sure you have a strong stomach because I know every time I’ve gone, half the boat gets sea sick. It’s always funny.
All right. Thanks for joining us.

MATT: Keep it sound and keep it smart.

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A podcast covering business in the news with a legal twist by Pasha Law PC
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Legally Sound | Smart Business covers the top business stories with a legal twist. Hosted by attorneys Nasir N. Pasha and Matt Staub of Pasha Law, Legally Sound | Smart Business is a podcast geared towards small business owners.

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