KEY DISCOVERY: A Norton Rose Fulbright trial team established that the only plaintiff with a direct link to Ringling Bros.’ elephants was being paid by animal rights groups, demolishing their case. (Photo credit should read ) (Don Emmert / AFP / Getty Images)
The producer of the Ringling Bros. and Barnum & Bailey Circus decided in late 2005 it was time for a new litigation ringmaster. Feld Entertainment Inc. had been fighting for years in court against allegations by animal rights groups that it mistreated its elephants. The company turned to Fulbright & Jaworski (now Norton Rose Fulbright), which had ties to the circus dating to the 1940s, replacing Covington & Burling as lead counsel.
Feld won a judgment in the case in 2009. U.S. District Judge Emmet Sulli­van of the District of Columbia found that the lone plaintiff with a direct tie to the elephants, former Feld employee Tom Rider, lacked credibility and had been paid by the animal rights groups to serve as a plaintiff. In March 2013, Sullivan ruled Feld could recover its legal fees, kicking off a fight over how much the groups owed. In a separate racketeering lawsuit Feld brought against the plaintiffs, the judge rejected a dismissal motion in 2012.
In 2012, Feld reached a $9.3 million settlement with the American Society for the Prevention of Cruelty to Animals, covering a large portion of its legal fees. In May of this year, the remaining groups agreed to pay $15.75 million to end the fee fight and the racketeering case.
The National Law Journal discussed the litigation with Feld’s lead attorneys, Norton Rose partners John Simpson and Michelle Pardo. The interview was edited for space and clarity.
NLJ: Let’s start with the beginning of the firm’s involvement.
John Simpson: The case was then in discovery, principally discovery by the plaintiffs against the defendant. We came in and took a handoff from Covington & Burling and straightened out the discovery issues. We were following up on what had already been propounded by Covington in terms of the financial relationship between Tom Rider and the organizational plaintiffs. And that led to the discovery of this payment scheme and its details.
NLJ: Were there problems with how Covington had handled the case to date?
Simpson: We can’t get into things that might be privileged. But all I can say is that we won the case. We came in and we won the case.
NLJ: When you got involved, did you make any changes in terms of how the case was managed?
Simpson: I think that our staffing was not unlike Covington — their main difference is they have a tendency to use more paralegals than we did. We didn’t have that many paralegals, No. 1. But we had a core team that we set up when we first got the case, and basically that core team stayed the same throughout the length of the litigation. Four to five lawyers did about 70 percent of all the work from beginning to end.
Michelle Pardo: Everyone on that core team made it their job to understand how the veterinarians worked, how the performers worked, how the elephant trainers and handlers worked. So, in that respect, we really did have to take a deep dive into the business and as practitioners really try to learn what this very unique business is, so that we could relay that to the judge and put on our case in a way that had a lot of credibility.
NLJ: The first thing you filed was the motion for summary judgment. So you came in at a pretty critical juncture.
Simpson: The motion for summary judgment was a key filing because, first of all, this was a case of first impression. No one had ever been sued under the [Endangered Species Act] with the claim being made that the handling of a captive animal of any kind was a so-called “take.”
It became clear as we got more and more information about Rider that the payment of this man was a problem. It was an ethical problem and it was a legal problem. And this was not something that came out overnight — we had to fight for this information.
Pardo: Every practitioner probably is familiar with the point in a deposition where you ask if a witness has been receiving any money, or who is paying his legal bills or who’s paying the counsel to be there. But you never expect to uncover facts that the witness is actually being paid. So, as John had said, getting to that point took a fair amount of digging and a fair amount of just really sticking with our facts. Because it certainly wasn’t something that was, I think, appreciated by the court when it was first brought up.
Simpson: We called and said, “We’re going to file a motion for summary judgment.” The next response was to notice Tom Rider’s deposition [i.e: the plaintiffs lawyers announced plans to depose their own client]. Which you never do — you never depose your own client unless he’s sick, in jail or about to go out of the country, or is not going to be available. As a result of this, they prematurely put him up in a situation where we could cross-examine him and establish things like he had no job other than to be a plaintiff in the case.
NLJ: Did you sense early on that standing would be the sticking point here?
Simpson: We knew standing was an issue and we were never shy about putting that in there. The same findings of fact that Judge Sullivan ultimately entered, we gave the plaintiffs in proposed form before the trial started, so they knew exactly what our position was.
Judge Sullivan did the right thing. If you don’t have Article III jurisdiction, you dismiss. But a lot of other judges in this district don’t handle it that way. They’ll say, “Well, standing’s kind of arguable here, I’m going to put standing to one side and go ahead and deal with the merits.” My guess is that he didn’t do that because he didn’t see any reason to. There was nothing to deal with on the merits. Eighty percent of their case was based on Tom Rider.
The media view has always been that the reason [Rider's] testimony was rejected was because he was paid. And that was a significant part of it, but I think the real reason his testimony was rejected was because everything he said at trial was contradicted by what he had said and done in the past.
NLJ: You reached two settlements, ­ultimately.
Simpson: If all that had happened was that Feld Entertainment had been able to demonstrate that the [Endangered Species Act] case was frivolous and had submitted a fee petition, I think it’s highly unlikely that they would have recovered more than 80 percent of what they claimed. Because that just doesn’t happen. No judge — it just doesn’t happen. Nobody gets 100 percent. But [the plaintiffs] ended up paying it all. All of it. And I think the reason they paid it all is because they knew that they were going to pay a lot more if they went forward [defending against] in that RICO case.
Contact Zoe Tillman at firstname.lastname@example.org.