Baker v. Seaworld Entertainment, Inc. et al

Filing 506

Notice and ORDER Providing Tentative Ruling Re: Motions in Limine [Doc. Nos. 474 , 476 ]. Signed by Judge Michael M. Anello on 1/16/2020. (tcf) Modified text and regenerated NEF on 1/16/2020 (tcf).

1
2
3
4
5
6
7
8
9

UNITED STATES DISTRICT COURT

10

SOUTHERN DISTRICT OF CALIFORNIA

11
12

Case No.: 14cv2129-MMA (AGS)

LOU BAKER, individually and on behalf
of all others similarly situated,

13

NOTICE AND ORDER PROVIDING
TENTATIVE RULINGS RE:
MOTIONS IN LIMINE

Plaintiff,

14

v.

15

SEAWORLD ENTERTAINMENT, INC.,
et al.,

16
17

[Doc. Nos. 474, 476]

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-

14cv2129-MMA (AGS)

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
4

In anticipation of the hearing, the Court issues the following tentative rulings on
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
-2-

14cv2129-MMA (AGS)

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
26

7.

The Court tentatively DENIES Plaintiffs’ motion to preclude live witnesses

27
1

28

Certain materials Plaintiffs seek to pre-admit are the subject of Defendants’ motions in limine,
which the Court addresses below.
-3-

14cv2129-MMA (AGS)

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

///
-4-

14cv2129-MMA (AGS)

1
2

DEFENDANTS’ MOTIONS
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
9

2.

The Court tentatively DEFERS ruling on Defendants’ request to require

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),
-5-

14cv2129-MMA (AGS)

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
11

witnesses under Federal Rule of Evidence 902(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
28

9.

The Court tentatively DEFERS ruling on Defendants’ motion to exclude

evidence of animal treatment, trainer injury, and workplace safety issues. The Court
-6-

14cv2129-MMA (AGS)

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

///
-7-

14cv2129-MMA (AGS)

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
6

 Plaintiffs’ objection to all new evidentiary materials Defendants added to their first
and second amended disclosures after the December 6, 2019 deadline;

7

 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: (i) reduce the number

9

of exhibits on the parties’ exhibit lists; and (ii) 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

 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
20
21

 A procedure for dismissing prospective jurors in advance of jury selection based
upon their questionnaire responses; and
 Keeping track of time at trial and the use of a “chess clock.”

22
23

IT IS SO ORDERED.

24
25
26
27

Dated: January 16, 2020

________ ____________________
HON. MICHAEL M. ANELLO
United States District Judge

28
-8-

14cv2129-MMA (AGS)