Baker v. Seaworld Entertainment, Inc. ( 2020 )

1 2 3 4 5 6 7 8 9 UNITED STATES DISTRICT COURT 10 SOUTHERN DISTRICT OF CALIFORNIA 11 LOU BAKER, individually and on behalf Case No.: 14cv2129-MMA (AGS) 12 of all others similarly situated, NOTICE AND ORDER PROVIDING 13 TENTATIVE RULINGS RE: Plaintiff, MOTIONS IN LIMINE 14 v. [Doc. Nos. 474, 476] 15 SEAWORLD ENTERTAINMENT, INC., et al., 16 17 Defendants. 18 19 20 On January 21, 2020 at 2:30 p.m., Lead Plaintiffs and Class Representatives 21 Arkansas Public Employees Retirement System and Pensionskassen for Børne-Og 22 Ungdomspædagoger (“Plaintiffs”) and Defendants SeaWorld Entertainment, Inc. 23 (“SeaWorld”), James Atchison, James M. Heaney, Marc Swanson, and the Blackstone 24 Group L.P. (collectively, “Defendants”) will appear before the Court for a pretrial 25 conference and hearing on the parties’ motions in limine. See Doc. Nos. 474, 476. The 26 parties move to file under seal certain documents and exhibits in connection with their 27 respective motions in limine, and briefs in opposition thereto. See Doc. Nos. 471, 473, 28 487, 488. The Court will address these motions to seal via a separate order after the 1 pretrial conference. The Court advises counsel that the pretrial conference will not be a 2 sealed hearing and counsel should tailor their arguments accordingly. 3 In anticipation of the hearing, the Court issues the following tentative rulings on 4 the pending motions: 5 PLAINTIFFS’ MOTIONS 6 1. The Court tentatively GRANTS Plaintiffs’ motion to bifurcate trial into two 7 phases—one for class-wide questions of Defendants’ liability and the measure of 8 damages (Phase One), and a second for Class member-specific individual issues (Phase 9 Two). The Court tentatively finds that bifurcation promotes judicial economy and avoids 10 prejudice. See Fed. R. Civ. P. 42(b). Counsel should be prepared to discuss the logistics 11 of a bifurcated trial at the hearing. 12 2. The Court tentatively GRANTS IN PART and DENIES AS MOOT IN 13 PART Plaintiffs’ motion to exclude evidence and argument concerning Plaintiffs and/or 14 Class Counsel. The Court tentatively grants Plaintiffs’ motion to exclude evidence and 15 argument concerning individual issues regarding Plaintiffs or other Class Members and 16 the absence of Plaintiffs during Phase One. The Court tentatively finds that evidence or 17 argument concerning individual issues and the absence of Plaintiffs is irrelevant during 18 Phase One. The Court tentatively denies as moot Plaintiffs’ motion to exclude evidence 19 or argument concerning Class Counsel and Plaintiffs’ involvement in other litigation, as 20 Defendants maintain that they do not intend to introduce such evidence or argument at 21 trial. 22 3. The Court tentatively DENIES AS MOOT IN PART and GRANTS IN 23 PART Plaintiffs’ motion to exclude evidence and argument referencing attorney advice 24 or involvement. The Court tentatively denies as moot Plaintiffs’ motion to the extent 25 Plaintiffs seek to exclude evidence or argument concerning the substance of attorney- 26 client communications relied upon in making the disclosures at issue in this action, as 27 Defendants do not intend to rely on an advice of counsel defense by putting the substance 28 of any legal advice at issue. The Court tentatively grants Plaintiffs’ motion to the extent 1 Defendants introduce evidence or argument that: (i) lawyers were involved in the 2 disclosure process; (ii) lawyers prepared, reviewed, or approved documents, statements 3 or conduct at issue; or (iii) Defendants relied on the advice of counsel in making the 4 disclosures at issue. The Court tentatively finds such evidence is irrelevant. Even if such 5 evidence is marginally relevant, the Court tentatively finds that the probative value of this 6 evidence is substantially outweighed by the danger of unfair prejudice. 7 4. The Court tentatively DENIES AS MOOT Plaintiffs’ motion to exclude 8 evidence and argument concerning SeaWorld’s Special Committee Report. Defendants’ 9 third motion in limine seeks to exclude evidence of investigations by the SEC and DOJ 10 related to SeaWorld’s disclosures regarding Blackfish. Because the Court tentatively 11 grants Defendants’ third motion in limine—which is broader than the instant motion—the 12 Court tentatively finds that Plaintiffs’ motion is moot. 13 5. The Court tentatively DENIES Plaintiffs’ motion to: (i) pre-admit certain 14 materials into evidence1; and (ii) publish to the jury during opening statements any pre- 15 admitted evidence. Absent a stipulation between the parties, the Court is not inclined to 16 pre-admit materials into evidence. Additionally, it is the Court’s view that opening 17 statements are not the time to try one’s case. Thus, the Court tentatively finds that it is 18 inappropriate to publish pre-admitted evidence to the jury during opening statements. 19 However, counsel should be prepared to discuss at the hearing the extent to which the 20 parties seek to use demonstrative aids during their opening statements. 21 6. The Court tentatively DENIES AS MOOT Plaintiffs’ motion to exclude 22 evidence and argument concerning claims or defendants that have been dismissed, and 23 any claims or legal theories that Plaintiffs have abandoned, modified, or never asserted in 24 this case, as Defendants do not intend to offer any such evidence or argument at trial. 25 7. The Court tentatively DENIES Plaintiffs’ motion to preclude live witnesses 26 27 1 Certain materials Plaintiffs seek to pre-admit are the subject of Defendants’ motions in limine, 28 1 from testifying in Defendants’ case-in-chief who were not made available for live 2 testimony in Plaintiffs’ case-in-chief. The Court tentatively finds that Plaintiffs’ motion 3 is premature at this stage. However, counsel should be prepared to discuss this issue in 4 greater detail at the hearing. 5 8. The Court tentatively GRANTS IN PART and DENIES IN PART 6 Plaintiffs’ motion to exclude evidence and argument concerning Defendants’ ability to 7 pay or aggregate damages. The Court tentatively grants Plaintiffs’ motion to exclude 8 evidence or argument concerning Defendants’ ability to pay a damages award, as 9 Defendants do not oppose this aspect of Plaintiffs’ motion. The Court tentatively denies 10 Plaintiffs’ motion to exclude any reference at trial to aggregate damages as overbroad. 11 Defendants do not intend to offer a precise calculation of the potential aggregate recovery 12 at trial. However, the Court tentatively finds that Defendants should not be precluded 13 from explaining that the total recovery of the class will be larger than the single-digit per- 14 share figure calculated by Plaintiffs’ expert. 15 9. The Court tentatively DENIES Plaintiffs’ motion to prohibit counsel from 16 communicating ex parte with sworn witnesses about his or her testimony until it is 17 completed. The Court tentatively finds that a ban on attorney-witness communications 18 about their testimony is premature at this stage. The parties may raise specific concerns 19 at trial, if necessary. 20 10. The Court tentatively GRANTS IN PART and DENIES IN PART 21 Plaintiffs’ motion to prohibit any party from disputing or otherwise objecting to the 22 authenticity of materials that party produced during discovery. The Court tentatively 23 grants Plaintiffs’ motion, as Defendants indicate that they are willing to stipulate to the 24 authenticity of documents that SeaWorld created and produced in discovery. The Court 25 tentatively denies Plaintiffs’ motion with respect to documents Defendants produced but 26 did not create. 27 / / / 28 / / / 1 DEFENDANTS’ MOTIONS 2 1. The Court tentatively DENIES Defendants’ motion to exclude evidence 3 concerning public statements not pleaded in Plaintiffs’ Second Amended Complaint 4 (“SAC”). The Court tentatively finds that this evidence is relevant. Additionally, the 5 Court tentatively finds that the probative value of this evidence is not substantially 6 outweighed by a danger of unfair prejudice, confusing the issues, misleading the jury, 7 undue delay, or wasting time. 8 2. The Court tentatively DEFERS ruling on Defendants’ request to require 9 Plaintiffs to provide the full text of each challenged statement along with sufficient 10 context for each challenged statement. The Court tentatively finds that the statements 11 must be moved into evidence in full, as required by Federal Rule of Evidence 106. 12 However, the scope of Defendants’ request is unclear. Plaintiffs claim that Defendants’ 13 concerns can be addressed through a stipulation between the parties to pre-admit the 14 documents containing the false statements at issue and publish them to the jury in full. 15 Counsel should be prepared to discuss any such stipulation to pre-admit the documents 16 containing the false statements at the hearing. 17 3. The Court tentatively GRANTS Defendants’ motion to exclude evidence of 18 government investigations by the SEC and DOJ related to SeaWorld’s disclosures 19 regarding Blackfish, as Plaintiffs generally do not oppose Defendants’ motion. Plaintiffs 20 can raise specific arguments regarding this subject if Defendants “open the door” at trial. 21 4. The Court tentatively GRANTS IN PART and DENIES IN PART 22 Defendants’ motion to preclude Plaintiffs from: (i) introducing testimony from Fred 23 Jacobs concerning his state of mind regarding the August 2013 statements; and (ii) 24 arguing that Jacobs’ state of mind can be imputed to SeaWorld in evaluating the 25 company’s liability for the August 29, 2013 statement. The Court tentatively grants 26 Defendants’ motion with respect to imputation and tentatively finds that Jacobs’ scienter 27 cannot be imputed to SeaWorld. See Janus Capital Grp., Inc. v. First Derivative 28 Traders, 564 U.S. 135 (2011); SEC v. City of Victorville, No. CV13-00776 JAK (DTBx), 1 2018 WL 3201676 (C.D. Cal. Jan. 24, 2018). However, the Court tentatively denies 2 Defendants’ motion regarding Jacobs’ state of mind and finds that such testimony is 3 relevant. Further, the Court tentatively finds that the probative value of Jacobs’ state of 4 mind testimony is not substantially outweighed by the danger of unfair prejudice. The 5 Court tentatively finds that a limiting instruction will be appropriate at trial. 6 5. The Court tentatively DENIES Defendants’ motion to exclude the 7 PulsePoint and Initiative custodian of records declarations and underlying documents. 8 The Court tentatively finds that the declarations establish the documents attested to are 9 business records under Federal Rule of Evidence 803(6) and were executed by qualified 10 witnesses under Federal Rule of Evidence 902(11). 11 6. The Court tentatively GRANTS Defendants’ motion to exclude two MKM 12 surveys and a “media mix analysis” prepared by Initiative to the extent such reports are 13 offered for their truth. The Court tentatively finds that these third-party market research 14 reports do not qualify as statements of an opposing party under Federal Rule of Evidence 15 801(d)(2)(D). 16 7. The Court tentatively DEFERS ruling on Defendants’ motion to exclude 17 public and social media correspondence to the extent offered for the truth of the matters 18 asserted therein. The Court tentatively finds that any analysis of whether consumer 19 communications and social media posts fall within hearsay exceptions must be conducted 20 on a case-by-case basis. 21 8. The Court tentatively GRANTS Defendants’ motion to preclude Plaintiffs 22 from playing Blackfish, excerpts thereof, or the trailer to the jury. The Court tentatively 23 finds that even if marginally relevant, the danger of unfair prejudice substantially 24 outweighs any probative value the film or trailer may have. The Court is inclined to 25 order the parties to prepare a joint statement regarding the film that can be read to the 26 jury at trial. 27 9. The Court tentatively DEFERS ruling on Defendants’ motion to exclude 28 evidence of animal treatment, trainer injury, and workplace safety issues. The Court 1 tentatively finds Defendants’ motion is vague and overbroad. Defendants acknowledge 2 that the jury should not be prevented from understanding in general terms the subject 3 matter of Blackfish or the allegations that formed the basis of the Blackfish-related 4 publicity. This information could include reference to animal treatment, trainer injury, 5 and workplace safety issues. However, consistent with the Court’s tentative ruling 6 regarding Defendants’ eighth motion in limine, the Court tentatively finds that the 7 probative value of evidence of animal treatment, trainer injury, and workplace safety 8 issues that goes beyond providing context for the jury, even if marginally relevant, is 9 substantially outweighed by the danger of unfair prejudice. 10 10. The Court tentatively DENIES Defendants’ motion to exclude evidence of 11 alleged investigation or surveillance of animal rights groups. The Court tentatively finds 12 that this evidence is relevant. Additionally, the Court tentatively finds that the probative 13 value of this evidence is not substantially outweighed by the danger of unfair prejudice. 14 11. The Court tentatively GRANTS Defendants’ motion to exclude evidence or 15 argument regarding Defendants’ current financial condition, net worth, and/or 16 profitability, as Plaintiffs do not oppose this aspect of Defendants’ motion. Plaintiffs 17 claim that to the extent Defendants also seek to exclude evidence of any Defendant’s 18 financial condition, net worth, and/or profitability during the Class Period, Plaintiffs 19 oppose Defendants’ motion. However, it does not appear to the Court that Defendants 20 seek to exclude evidence of any Defendant’s financial condition during the Class Period. 21 12. The Court tentatively DEFERS ruling on Defendants’ motion to exclude 22 evidence of alleged post-Class Period Blackfish impacts. The scope of Defendants’ 23 motion is unclear at this stage. Additionally, the Court tentatively finds that any analysis 24 of relevancy and/or prejudice concerning such evidence must be conducted on a case-by- 25 case basis. 26 As these rulings are tentative, the Court looks forward to the oral arguments of 27 counsel. 28 / / / 1 MISCELLANEOUS MATTERS 2 Upon review of the parties’ pretrial disclosures and memoranda of contentions of 3 || fact and law, the Court requests counsel also be prepared to discuss the following at the 4 hearing: 5 e Plaintiffs’ objection to all new evidentiary materials Defendants added to their first 6 and second amended disclosures after the December 6, 2019 deadline; 7 e The number of exhibits sought to be introduced at trial and related objections. The 8 Court is inclined to order the parties to meet and confer to: (1) reduce the number 9 of exhibits on the parties’ exhibit lists; and (11) resolve as many of the outstanding 10 objections to witnesses, exhibits, and proposed use of deposition testimony as 11 possible. After participating in the meet and confer, the Court is inclined to order 12 the parties to provide a joint status report setting forth each side’s remaining 13 objections. The Court will likely set an additional pretrial status hearing to resolve 14 the remaining objections; 15 e Sealed documents and/or witness testimony at trial. It is the Court’s view that 16 exhibits and testimony admitted at trial should be public, unsealed, and not 17 otherwise restricted from public access. See Richmond Newspapers, Inc. v. 18 Virginia, 448 U.S. 555, 580 n.17 (1980); 19 e A procedure for dismissing prospective jurors in advance of jury selection based 20 upon their questionnaire responses; and 21 e Keeping track of time at trial and the use of a “chess clock.” 22 23 IT IS SO ORDERED. 24 25 ||Dated: January 16, 2020 hth L La 26 HON. MICHAEL M. ANELLO United States District Judge 28