Legal News

The Show Will Go On

By Brian Harris

When Ringling Bros. and Barnum & Bailey circus comes to Philadelphia this spring, the show will go on with elephants. Circus-goers will have an opportunity to see the elephants before and during the show, including up close, and for many patrons, the elephants will be the most popular performers. Many will take this for granted ? the circus has elephants every year. But this will be the first year in a long time that the circus will come here and perform without a threat looming that litigation will put an end to the elephants? part in the show.

That change comes because, on Dec. 30, Judge Emmet Sullivan of the U.S. District Court for the District of Columbia ruled in favor of Feld Entertainment, the company that stages the circus, in a years-long case alleging that the circus?s elephant-handling practices violate the Endangered Species Act. In his opinion, Sullivan did not reach the merits of the dispute. Instead, he ruled that Tom Rider, a plaintiff in the case and a former elephant handler who worked for the circus in the late 1990s, did not have standing because he had not proved that he suffered a constitutionally cognizable injury and because he had not shown that the court could redress any injury that he did suffer.

The focus of the opinion is not on the way that the circus handles elephants. Instead, it is a revealing look at the way that several animal-advocacy organizations ? the ASPCA, the Performing Animal Welfare Society, the Fund for Animals and the Animal Welfare Institute ? as well as a law firm focused on animal-advocacy causes sought to recruit and maintain the interest of a plaintiff who would allow them to litigate their causes. Throughout the opinion, Sullivan attacks Rider?s credibility because, from 1999 until today, those groups have paid him more than $100,000. Some of those payments were made directly by animal advocacy groups to Rider. Others were made by plaintiffs? counsel and billed back to their clients. Still others were paid through a 501(c)(3) organization established and run by plaintiffs? counsel. Sullivan found in his opinion that those payments were made to secure Rider as a plaintiff in the case.

The defense in this case will likely provide a roadmap for other organizations facing litigation brought by animal rights groups, including department stores and food companies. The lesson, clearly, is not merely to play defense. Instead, make sure to know everything there is to know about the party on the other side, including asking why that party is participating in the case. The helpful nature of the results may surprise you.

Finally, a word of disclosure: When this case was first filed, I was one of the lawyers defending the circus. However, to be clear, I have not had any involvement in years, I was not at or involved with the trial, and nothing in this post includes any information that I learned in the course of that representation.

Joshua D. Wolson is a member of the Litigation Department at Dilworth Paxson LLP. He can be reached at (215) 575-7295 or jwolson@dilworthlaw.com. This posting is for informational purposes only and should not be construed or interpreted as legal advice on any matter.

Full post as published by The Legal Intelligencer Blog on January 21, 2010 (boomark / email).