KINSELLA WEITZMAN ISER KUMP & ALDISERT LLP LAWRENCE … · 2017-12-01 · KINSELLA WEITZMAN ISER KUMP & ALDISERT LLP LAWRENCE Y. ISER (SBN 094611) [email protected] KRISTEN L. SPANIER

4:15-cv-02172 JSW JCS DEFENDANT’S NOTICE OF MOTION AND MOTION FOR RULE 11 SANCTIONS AND MEMORANDUM OF POINTS AND

AUTHORITIES IN SUPPORT THEREOF

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

DOCUMENT PREPARED

ON RECYCLED PAPER

KINSELLA WEITZMAN ISER KUMP & ALDISERT LLPLAWRENCE Y. ISER (SBN 094611) [email protected] KRISTEN L. SPANIER (SBN 181074) [email protected] 808 Wilshire Boulevard, 3rd Floor Santa Monica, California 90401 Telephone: (310) 566-9800 Facsimile: (310) 566-9850 NORTON ROSE FULBRIGHT US LLP JOHN M. SIMPSON (admitted pro hac vice) [email protected] MICHELLE C. PARDO (admitted pro hac vice) [email protected] REBECCA E. BAZAN (admitted pro hac vice) [email protected] 799 9th Street NW Suite 1000 Washington, DC 20001-4501 Telephone: (202) 662-0200 Facsimile: (202) 662-4643 Attorneys for Defendant SeaWorld Parks & Entertainment, Inc.

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

OAKLAND DIVISION

MARC ANDERSON, KELLY NELSON and JULIETTE MORIZUR on their own behalf and on behalf of a class of others similarly situated, Plaintiffs, v. SEAWORLD PARKS AND ENTERTAINMENT, INC., Defendant.

Civil Action No. 4:15-cv-02172 JSW JCS DEFENDANT’S NOTICE OF MOTION AND MOTION FOR SANCTIONS PURSUANT TO FED. R. CIV. P. 11 AND MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF [Fed. R. Civ. P. 11] DATE: February 2, 2018 TIME: 9:00 A.M. ROOM: COURTROOM 5 JUDGE: Hon. Jeffrey S. White

REDACTED VERSION OF DOCUMENT SOUGHT TO BE SEALEDCase 4:15-cv-02172-JSW Document 156 Filed 12/01/17 Page 1 of 21

- i - 4:15-cv-02172 JSW JCS DEFENDANT’S NOTICE OF MOTION AND MOTION FOR RULE 11 SANCTIONS AND MEMORANDUM OF POINTS AND


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

DOCUMENT PREPARED

ON RECYCLED PAPER

NOTICE OF MOTION AND MOTION

TO ALL PARTIES AND THEIR COUNSEL OF RECORD:

PLEASE TAKE NOTICE that on February 2, 2018, at 9:00 a.m. or as soon thereafter as

this matter may be heard before the Honorable Jeffrey S. White in Courtroom 5 of the United States

District Court for the Northern District of California, located at 1301 Clay Street, Oakland,

California, 94612, Defendant SeaWorld Parks and Entertainment, Inc. (SeaWorld) will and hereby

does move the Court for an order, pursuant to Federal Rule of Civil Procedure 11(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 11(c)(4).

SeaWorld moves for Rule 11 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 1, 2017

NORTON ROSE FULBRIGHT US LLP

By: /s/ John M. Simpson JOHN M. SIMPSON Attorneys for Defendant


- ii - 4:15-cv-02172 JSW JCSDEFENDANT’S NOTICE OF MOTION AND MOTION FOR RULE 11 SANCTIONS AND MEMORANDUM OF POINTS AND


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

DOCUMENT PREPARED

ON RECYCLED PAPER

TABLE OF CONTENTS

TABLE OF CONTENTS ................................................................................................................. ii

TABLE OF AUTHORITIES .......................................................................................................... iii

SUMMARY OF ARGUMENT ...................................................................................................... iv

I. INTRODUCTION .................................................................................................................... 1

II. BACKGROUND ...................................................................................................................... 2

A. The Plaintiffs ............................................................................................................ 2

B. Earth Island/International Marine Mammal Project ................................................ 5

C. Plaintiffs’ Current Claims and Allegations .............................................................. 5

D. Discovery, Summary Judgment, and Service of Rule 11 Motion ............................ 6

III. LEGAL STANDARD ............................................................................................................... 7

IV. PLAINTIFFS’ COUNSEL VIOLATED RULE 11 .................................................................. 7

A. Plaintiffs’ Counsel Misled the Court to Keep the Case Alive ................................. 7

B. Plaintiffs’ Counsel Pursued Frivolous Claims For Improper Purposes ................. 13

V. PLAINTIFFS’ COUNSEL SHOULD BE ORDERED TO PAY SEAWORLD’S LEGAL FEES AND COSTS ................................................................................................................ 15


- iii - 4:15-cv-02172 JSW JCS DEFENDANT’S NOTICE OF MOTION AND MOTION FOR RULE 11 SANCTIONS AND MEMORANDUM OF POINTS AND


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

DOCUMENT PREPARED

ON RECYCLED PAPER

TABLE OF AUTHORITIES

Cases Page(s)

Anderson v. SeaWorld Parks & Entm’t, 2016 WL 4076097 (N.D. Cal. Aug. 1, 2016) ........................................................7, 9, 11, 13, 15

Bird v. First Alert, Inc., 2015 WL 3750225 (N.D. Cal. June 15, 2015) ..........................................................................12

Estate of Blue v. Cty. of L.A., 120 F.3d 982 (9th Cir. 1997) .......................................................................................................7

Christian v. Mattel, Inc., 286 F.3d 1118 (9th Cir. 2002) .....................................................................................................2

City of E. St. Louis v. Circuit Court for Twentieth Jud. Circuit, St. Clair Cty., 986 F.2d 1142 (7th Cir. 1993) ...................................................................................................15

Danvers v. Danvers, 959 F.2d 601 (6th Cir. 1992) .....................................................................................................15

Davidson v. Kimberly-Clark Corp., 873 F.3d 1103 (9th Cir. 2017) .....................................................................................................9

Hendrix v. Naphtal, 971 F.2d 398 (9th Cir. 1992) .....................................................................................................15

Kendrick v. Zanides, 609 F. Supp. 1162 (N.D. Cal. 1985) .........................................................................................15

Millett v. Experian Info. Sols., Inc., 319 F. App’x 562 (9th Cir. 2009) .............................................................................................12

Mitchell v. Reg’l Serv. Corp., 2014 WL 12607809 (N.D. Cal. Apr. 23, 2014) ........................................................................13

Pfizer Inc. v. Superior Court, 182 Cal. App. 4th 622 ...............................................................................................................12

Smith v. Ricks, 31 F.3d 1478 (9th Cir. 1994) .......................................................................................................7

Rules and Statutes

Fed. R. Civ. P. 11 .................................................................................................................... passim


- iv - 4:15-cv-02172 JSW JCS DEFENDANT’S NOTICE OF MOTION AND MOTION FOR RULE 11 SANCTIONS AND MEMORANDUM OF POINTS AND


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

DOCUMENT PREPARED

ON RECYCLED PAPER

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, (1) it is not being presented for any improper purpose …; [and]

(3) the factual contentions have evidentiary support … .” Fed. R. Civ. P. 11(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. 11(c). Plaintiffs’ counsel falsely certified all

filings in this Court.

They violated Rule 11(b)(3) 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 11(b)(1) 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


- 1 - 4:15-cv-02172 JSW JCS DEFENDANT’S NOTICE OF MOTION AND MOTION FOR RULE 11 SANCTIONS AND MEMORANDUM OF POINTS AND


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

DOCUMENT PREPARED

ON RECYCLED PAPER

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


- 2 - 4:15-cv-02172 JSW JCSDEFENDANT’S NOTICE OF MOTION AND MOTION FOR RULE 11 SANCTIONS AND MEMORANDUM OF POINTS AND


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

DOCUMENT PREPARED

ON RECYCLED PAPER

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.

Plaintiffs issued document requests unrelated to the specific statements

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., 286 F.3d 1118, 1127 (9th Cir. 2002).

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 136). The following facts also are relevant here:

A. The Plaintiffs

Anderson. In April 2014, Anderson purchased tickets to SeaWorld San Diego. TAC (ECF

REDACTED




1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

DOCUMENT PREPARED

ON RECYCLED PAPER

94) ¶ 18. 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.) 34:20-35:1.

Anderson visited SeaWorld San Diego in June 2014. TAC ¶ 18. While there, he bought a Shamu

plush toy for his sister. Id.; Simpson Decl. Ex. A 74:3-24; 75:17-25. 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. 121:16-123:8; 76:19-21.

Eight months later, on February 25, 2015, Anderson was invited to complete an online

survey based on his SeaWorld trip. Id. Ex. A, at Ex. 24. Mark Palmer of Earth Island was “behind

the survey,” for which Anderson received a $100 gift card. Id. Ex. A 21:7-21; 31:7-32:7. 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. 22:7-23; 24:16-25; 86:22-88:5;

89:5-13; 91:19-23. The movie was Blackfish. Id. 86:22-25; see also id., Ex. A at Ex. 27 (Palmer

to Anderson email: “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 2015. Id. Ex.

A 24:16-25:12. 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. 107:13-108:3. 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 2014. Id. 126:5-127:25; 139:3-

10. 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.

136: 16-21. Anderson never researched orca lifespans prior to that 2015 meeting and was not

thinking about it when he went to SeaWorld in 2014. Id. 137:4-16. 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. 104:9-13; 123:14-17; 139:21-140:5. Shortly thereafter, on




1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

DOCUMENT PREPARED

ON RECYCLED PAPER

April 9, 2015, Haskett sent Anderson an engagement letter, which he signed on April 10, 2015. Id.

149:18-20; id. Ex. A at Ex. 25. Three days later, on April 13, 2015, Covington filed the original

complaint on Anderson’s behalf. ECF 1-1.

Nelson. Nelson visited SeaWorld San Diego in August 2015. TAC ¶ 19. Her husband

purchased her ticket. Simpson Decl. Ex. B (Nelson Dep.) 154:20-22. Shortly after her visit, on

August 8, 2015, she wrote a negative review about SeaWorld on the website Yelp. Id. 62:14-63:3;

66:11-67:6; Exs. 37 & 38 (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 mis-

statements by SeaWorld about life spans or calf separation. Id. 66:11-67:6; 75:7-76:3; 77:19-78:21;

187:3-15; Exs. 37 & 38. Nelson’s progression to plaintiff status began when “Laura” from EII

contacted Nelson about her Yelp review. Id. 34:11-35:22. Laura emailed Nelson in November

2015, and Nelson had a call with Palmer and Haskett in early 2016. Id. 37:11-38:12; 50:25-51:14;

59:16-24; Ex. 36. 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. 61:11-17; Ex. 36. Before

then, Nelson had never considered suing SeaWorld. Id. 187:20-25. On February 5, 2016, Haskett

sent Nelson an engagement letter, which she signed. Id. 40:1-5; Ex. 42. Nelson first officially

appeared as a Plaintiff in the SAC, filed on August 22, 2016, without Nelson having reviewed it.

SAC ¶ 20 (ECF 81); Simpson Decl. Ex. B 94:19-95:16.

Morizur. Morizur visited SeaWorld San Diego in April 2012. TAC ¶ 20. 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.) 79:1-

19. Three years later, in late 2015, David Phillips of EII emailed 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. 23:13-24:9; 51:5-14. 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. 26:3-13. Morizur discussed becoming a plaintiff in a call with Haskett on




1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

DOCUMENT PREPARED

ON RECYCLED PAPER

February 5, 2016. Id. 47:8-15; ECF 75-1. On February 11, 2016 Haskett sent Morizur an

engagement letter, which she signed in June of 2017. Id. 59:24-60:1; Ex. 18. Morizur appeared as

a Plaintiff for the first time in the SAC, filed August 22, 2016. SAC ¶ 21. Morizur has no

recollection of reviewing the SAC before it was filed. Simpson Decl. Ex. C 52:6-17.

B. Earth Island/International Marine Mammal Project

Id. Ex. C, at Ex.

18. 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 2 (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

3-17 (Staff page). Josh Floum is the president of EII. Id. at 18 (EII Board of Directors Page).

Earth Island and IMMP admit that they are part of, and initiated, this lawsuit. See id. at 20

(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 2, 2017 “thank you” note for the “many donations and help from our

supporters,” Palmer listed—as one of IMMP’s “Key 2016 Accomplishments”—“Initiating

pioneering lawsuit against SeaWorld …, fighting off two efforts by SeaWorld attorneys to dismiss

the case.” Id. Ex. D at 25 (IMMP Blog) (emphasis added).

C. Plaintiffs’ Current Claims and Allegations

Anderson has UCL and FAL claims based on his alleged June 2014 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 ¶ 18. Nelson has UCL, FAL, and CLRA claims based on her alleged August 2015

ticket purchase in reliance on statements on SeaWorld’s “website as well as on television” that “it

REDACTED




1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

DOCUMENT PREPARED

ON RECYCLED PAPER

did not separate calves and mothers, and that its captive orcas had similar lifespans to orcas in the

wild.” Id. ¶ 19. Morizur has a UCL “unfair” claim based on her April 2012 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. ¶ 20. All plaintiffs allege they “may consider” making future SeaWorld purchases. Id. ¶¶ 18-

20. Plaintiffs seek injunctive relief and restitution. Id. ¶ 85.

D. Discovery, Summary Judgment, and Service of Rule 11 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 124-1

(Plaintiffs’ Document Requests) at Nos. 1, 2, 4. SeaWorld objected to such requests. See ECF 113

(first discovery dispute letter); ECF 124 (second discovery dispute letter); ECF 124-2 (listing

disputed search terms, including terms relating to breeding). On September 1, 2017, 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 128, even though these terms

required the review of approximately 200,000 electronic documents. See ECF 124 at 4; 124-10.

On May 15, 2017, 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 121 at 3, 9-10. On August 2, 2017, Plaintiffs’ counsel designated Palmer, Floum, and Phillips

of EII/IMMP as “experts” to whom Confidential SeaWorld material would be disclosed. ECF 124-

8. 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 31st meet and confer, Plaintiffs

apparently abandoned this issue and only resurrected it after the Rule 11 Motion was served. Id.

¶ 8.

Plaintiffs were deposed on August 30 (Morizur), August 31 (Anderson), and September 14

(Nelson). Id. ¶¶ 2-4. On October 30, 2017, SeaWorld filed a motion for summary judgment, ECF




1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

DOCUMENT PREPARED

ON RECYCLED PAPER

136, and a motion to stay discovery, ECF 137. On October 31, 2017, it served a copy of this motion

and accompanying declarations and exhibits on Plaintiffs’ counsel. Simpson Decl. ¶ 9. 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

under the circumstances,” the filing “is not being presented for any improper purpose,” and “factual

contentions have evidentiary support[.]” Fed. R. Civ. P. 11(b). See also Smith v. Ricks, 31 F.3d

1478, 1488 (9th Cir. 1994) (“Rule 11 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., 120 F.3d 982, 985 (9th Cir. 1997).

“If, after notice and a reasonable opportunity to respond, the court determines that Rule 11(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. 11(c).

IV. PLAINTIFFS’ COUNSEL VIOLATED RULE 11

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 9-1 (FAC) ¶ 19; Anderson v. SeaWorld Parks & Entm’t,

2016 WL 4076097, at *6, *8, *10 (N.D. Cal. Aug. 1, 2016).

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. 1

Anderson now pursues claims based on the purchase of a Shamu plush toy (not tickets) in alleged

1 SeaWorld moved to dismiss the FAC on September 18, 2015. ECF 43. Shortly thereafter, EII and Covington recruited Nelson and Morizur. See supra at 4 (recruited in late 2015). Plaintiffs’ counsel moved for leave to add Nelson and Morizur on April 7, 2016. ECF 69.




1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

DOCUMENT PREPARED

ON RECYCLED PAPER

reliance on lifespan and separation statements he read on SeaWorld’s website before his June 2014

visit (not a generalized “campaign”). ECF 77 (redline of proposed SAC) ¶ 17; SAC ¶ 18; TAC

¶ 18. And now he “may consider” making future SeaWorld purchases. TAC ¶ 18.

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 2015, 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. ¶ 85.

Allegations/Required by Court Deposition Testimony (Simpson Decl. Ex. A)

“[A]fter purchasing the tickets to SeaWorld San Diego [in April 2014] but prior to visiting the park [in June 2014], 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 ¶ 18; see also SAC ¶ 18; Prop. SAC (ECF 69-2) ¶ 17))

Q: At this point in time at this first meeting [with Palmer in March 2015], had you ever gone to the SeaWorld website to read up about care of their animals?

A: Not until after I met with him. (108:9-12)

***************************

Q: Now, up to this point where you’re sitting at Covington with Mr. Palmer [March 2015], 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 2015], 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 2014, right?

A: No. (127:14-18; 136:4-21; 137:4-16)

“[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 $25 to purchase a ‘Shamu Plush’ (a stuffed orca souvenir).” (TAC ¶ 18;

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 …




1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

DOCUMENT PREPARED

ON RECYCLED PAPER

Allegations/Required by Court Deposition Testimony (Simpson Decl. Ex. A)

see also SAC ¶ 18; Prop. SAC ¶ 17)

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. (121:16-123:2)

“[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 90 at 6; Anderson, 2016 WL 4076097, at *6. The Ninth Circuit’s decision in Davidson v. Kimberly-Clark Corp., 873 F.3d 1103 (9th Cir. 2017) 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 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. (210:25-215:11)

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 11(b)(3).

Nelson. Nelson’s allegations that (1) she purchased a SeaWorld ticket (2) after seeing and

relying on SeaWorld statements about lifespan and calf separation on television and on SeaWorld’s




1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

DOCUMENT PREPARED

ON RECYCLED PAPER

website and (3) that she may purchase future SeaWorld tickets (ECF 69-2 ¶ 19; SAC ¶ 20; TAC

¶ 19) 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 2015, Ms. Nelson purchased a ticket to SeaWorld San Diego, from the ticket counter at the park’s entrance.” (TAC ¶ 19; see also SAC ¶ 20; Prop. SAC ¶ 19)

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. (154:20-155:6)

“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 ¶ 19; see also SAC ¶ 20; Prop. SAC ¶ 19)

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. (134:8-21) (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. (156:11-157:7) (emphasis added)




1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

DOCUMENT PREPARED

ON RECYCLED PAPER


Lifespans. Q: Do you recall seeing television commercials about that subject [lifespans] before you went to SeaWorld?

A: I don’t. (133:1-11)

***************************

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. (132:2-20) (emphasis added)

“Relying in good faith on SeaWorld’s claims countering Blackfish, Ms. Nelson decided to purchase a ticket and visit the park.” (TAC ¶ 19; see also SAC ¶ 20; Prop. SAC ¶ 19)

A: … I haven’t ever seen anything that I felt like I could rely upon. (232:24-25) (emphasis added)

“[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 90 at 6; Anderson, 2016 WL 4076097, at *6.

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. (75:21-77:11)

“As their past decision to purchase SeaWorld tickets and/or merchandise demonstrates, Plaintiffs enjoy wildlife and the kind of animal entertainment and

Q: Is it true that you, Kelly Nelson, enjoy the kind of animal entertainment and education SeaWorld provides?

A: No. (242:24-243:2)




1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

DOCUMENT PREPARED

ON RECYCLED PAPER


education SeaWorld provides.” (TAC ¶ 59; see also SAC ¶ 60; Prop. SAC ¶ 58)

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., 2015 WL 3750225, at *5-6 (N.D. Cal. June 15, 2015) (no Article III standing

or CLRA economic injury for wife where husband bought product); Millett v. Experian Info. Sols.,

Inc., 319 F. App’x 562 (9th Cir. 2009) (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, 182 Cal.

App. 4th 622, 631 (2010) (“[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 11(b)(3).

Morizur. Morizur’s one surviving claim fails because she has no valid claims for relief.

The TAC seeks restitution and an injunction, TAC ¶ 85, 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 ¶ 85; see also SAC ¶ 87; Prop. SAC ¶ 83)

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. (163:2-4) (emphasis added)

***************************




1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

DOCUMENT PREPARED

ON RECYCLED PAPER

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. (163:25-164:5) (emphasis added)

“[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 90 at 6; Anderson, 2016 WL 4076097, at *6.

A: Right now I do not plan on visiting SeaWorld and buying a ticket there, buying any merchandise currently. (197:18-20)

Any reasonable inquiry would have revealed that Morizur’s relief claims lacked factual support.

Plaintiffs’ counsel thus violated Rule 11(b)(3) with the proposed SAC, the SAC, and the TAC.

B. Plaintiffs’ Counsel Pursued Frivolous Claims For Improper Purposes

Rule 11 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. 11(b)(1).

See also Mitchell v. Reg’l Serv. Corp., 2014 WL 12607809, at *6 (N.D. Cal. Apr. 23, 2014) (“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 *2 (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

Covington was already preparing the

case before Palmer found Anderson in 2015. See Simpson Decl. Ex. A 43:6-11 (Covington “had a

handle on the case already”); see also id. Ex. E (San Diego Times Article) (quoting Palmer stating

in April 2015 that the case had “been in the works for more than six months,” i.e., since October

2014); ECF 55-1 ¶ 3 (Haskett representing that Covington began preparing lawsuit and drafting

complaint in December 2014). Palmer is “the person behind the survey” that led to Anderson being

a plaintiff. Simpson Decl. Ex. A 21:7-21; 31:7-9. He also orchestrated the “injury” by having

Anderson watch Blackfish before their meeting at Covington. Id. 24:16-25:12; 86:22-88:5; 91:19-

REDACTED




1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

DOCUMENT PREPARED

ON RECYCLED PAPER

23. 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. 126:5-127:25; 135:13-136:21; 137:4-16; 139:3-10.

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 187:20-25. Nelson had

complaints about SeaWorld, but over the cost of food and the fact that the whales did “tricks.” Id.

Exs. 37 & 38 (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 32:12-18 (“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. 23:13-26:13.

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 19-20 25-26.

Id. Ex. C, at Ex. 18.

. Id. Clearly, EII is the real client for whom Covington is working. See

Id. Ex. A 147:4-22 (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 94:19-

95:16; Ex. C 52:6-17. 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 11(b)(1).

REDACTED

REDACTED




1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

DOCUMENT PREPARED

ON RECYCLED PAPER

V. PLAINTIFFS’ COUNSEL SHOULD BE ORDERED TO PAY SEAWORLD’S LEGAL FEES AND COSTS

Plaintiffs’ counsel should be sanctioned for violating Rule 11(b)(1) by filing and pursuing

the case for improper purposes, see Danvers v. Danvers, 959 F.2d 601, 604 (6th Cir. 1992)

(affirming sanctions where plaintiff sued ex-wife to harass her and increase her litigation costs in

case that lacked merit), and for violating Rule 11(b)(3) 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., 986 F.2d 1142, 1143-45 (7th Cir. 1993) (sanctions affirmed

where plaintiffs had no standing); see also Hendrix v. Naphtal, 971 F.2d 398, 399-400 (9th Cir.

1992) (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 11(b). Fed. R. Civ. P. 11(c)(4). 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. 30,

2017, SeaWorld has incurred $1,948,176.76. See Simpson Decl. ¶ 10; Iser Decl. ¶ 2; Hemenway

Decl. ¶ 3. 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, 2016 WL 4076097 at *8, 11. 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, 609 F. Supp. 1162, 1169-73 (N.D. Cal.

1985) (ordering sanctions for all defense fees and costs).

SeaWorld’s Motion for Rule 11 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.




1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

DOCUMENT PREPARED

ON RECYCLED PAPER

Dated: December 1, 2017

NORTON ROSE FULBRIGHT US LLP

By: /s/ John M. Simpson JOHN M. SIMPSON Attorneys for Defendant


Documents

KINSELLA WEITZMAN ISER KUMP & ALDISERT LLP LAWRENCE … · 2017-12-01 · KINSELLA WEITZMAN ISER KUMP & ALDISERT LLP LAWRENCE Y. ISER (SBN 094611) [email protected] KRISTEN L. SPANIER