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Case 3:14-cv-02129-MMA-KSC Document 123-1 Filed 05/31/16 Page 1 of 175

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KIRBY NOONAN LANCE &


HOGE LLP
David J. Noonan (Bar No. 55966)
Ethan T. Boyer (Bar No. 173959)
350 10th Avenue, Suite 1300
San Diego, California 92101
Tel: (619) 231-8666
Fax: (619) 231-9593
dnoonan@knlh.com
eboyer@knlh.com
Liaison Counsel for the Class
[additional counsel listed on signature page]

UNITED STATES DISTRICT COURT


SOUTHERN DISTRICT OF CALIFORNIA

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No. 3:14-cv-02129-MMA-KSC

LOU BAKER, individually and on


behalf of all others similarly situated,

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Plaintiff,

CLASS ACTION

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vs.

SECOND AMENDED
CONSOLIDATED AMENDED
CLASS ACTION COMPLAINT

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SEAWORLD ENTERTAINMENT,
INC., JAMES ATCHISON, JAMES M.
HEANEY, MARC SWANSON,
DAVID F. DALESSANDRO, BRUCE
MCEVOY, PETER WALLACE,
JOSEPH BARATTA, JUDITH A.
MCHALE, DEBORAH
THOMAS,AND THE BLACKSTONE
GROUP L.P., BARCLAYS CAPITAL
INC., BLACKSTONE CAPITAL
MARKETS L.P., CITIGROUP
GLOBAL MARKETS INC.,
DEUTSCHE BANK SECURITIES
INC., DREXEL HAMILTON, LLC,
GOLDMAN, SACHS & CO., J.P.
MORGAN SECURITIES LLC,
KEYBANC CAPITAL MARKETS
INC., LAZARD CAPITAL MARKETS
LLC, MACQUARIE CAPITAL (USA)
INC., MERRILL LYNCH, PIERCE,
FENNER & SMITH INC., NOMURA
SECURITIES INTERNATIONAL
INC., PIPER JAFFRAY & CO.,

JURY TRIAL DEMANDED

Second Amended Consolidated Amended Class


Action Complaint
Case No. 14-cv-2129

Case 3:14-cv-02129-MMA-KSC Document 123-1 Filed 05/31/16 Page 2 of 175

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SAMUEL A. RAMIREZ &


COMPANY, INC., TELSEY
ADVISORY GROUP LLC, AND
WELLS FARGO SECURITIES, LLC,
Defendants.

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Second Amended Consolidated Amended Class


Action Complaint
Case No. 14-cv-2129

Case 3:14-cv-02129-MMA-KSC Document 123-1 Filed 05/31/16 Page 3 of 175

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TABLE OF CONTENTS

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I.

INTRODUCTION ............................................................................................... 2

II.

JURISDICTION AND VENUE ..................................................................... 915

III.

THE PARTIES ................................................................................................ 915

A.
B.
C.
DC.

Lead Plaintiffs ....................................................................................... 915


Additional Plaintiffs ................................................................................ 10
The Corporate Defendant.................................................................... 1016
The Individual Defendants.................................................................. 1116
i.
Officer Defendants ....................................................................... 11
ii.
Director Defendants ................................................................................ 13
ED. The Blackstone Group L.P.................................................................. 1518
F.
The Underwriter Defendants .................................................................. 16
GE. Relevant Non-Parties .......................................................................... 1719

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IV.

OVERVIEW .................................................................................................. 2124


A.
B.

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C.

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D.

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E.

SeaWorlds April 2013 IPO And Two Secondary Public Offerings During
The Class Period ................................................................................ 21 24
SeaWorlds Operations ....................................................................... 2425
i.
The Amusement And Theme Park Industry ............................. 2527
ii.
Attendance Drives SeaWorlds Revenues ................................ 2729
Blackfish Premieres At The Sundance Film Festival And Seizes
Public Attention .................................................................................. 3034
Defendants Mislead Investors Concerning The Impact Of Blackfish
On The Companys Operations And Attendance ............................... 3340
i.
Defendants Repeatedly Deny That The Stark Attendance Decline
At SeaWorlds Parks Was Caused, To Any Degree, By
Blackfish ................................................................................... 3340
ii.
The Reasons SeaWorld Provided For The Entire Decline In
Attendance In Each Quarter Throughout The Class Period Are Not
Plausible.................................................................................... 4150
Unlike Its Competitors, SeaWorld Was Plagued By Blackfish, Which
Generated Extraordinary Negative Public Response and Media
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Memorandum of Points and Authorities in


Further Support of Motion
Case No. 14cv2129

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F.
G.

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H.

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V.

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April 18, 2013 IPO Offering Materials................................................ 67


May 23, 2013 1Q13 Form 10-Q ........................................................... 70
August 13, 2013 2Q13 Form 10-Q, Press Release And
Earnings Call ........................................................................................... 70
D.
August 29, 2013 SeaWorlds Statements To The Media ................ 7494
EB. November 13, 2013 3Q13 Form 10-Q, Press Release And
Earnings Call ....................................................................................... 7698
FC. November 14, 2013 Atchisons Statements To The Media........... 78100
G.
December 9, 2014 and December 12, 2014 December SPO
Offering Materials ................................................................................... 80
HD. December 20, 2013 Atchisons Statements To The Orlando
Sentinel .............................................................................................. 80102
IE. March 13, 2014 4Q13 And FY 2013 Press Release And
Earnings Call ..................................................................................... 82104
J.
March and April 2014 2013 Form 10-K And April SPO
Offering Materials ................................................................................... 86
KF. May 14, 2014 1Q14 Form-10Q, Press Release And
Earnings
Call .................................................................................................... 87109

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DEFENDANTS MATERIALLY FALSE AND MISLEADING


STATEMENTS AND OMISSIONS OF MATERIAL FACT
EXCHANGE ACT CLAIMS ....................................................................... 67 94
A.
B.
C.

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Attention Throughout The Class Period ............................................. 4757


i.
Social Media Platforms Like Twitter Successfully Moved The
Public To Watch Blackfish And Boycott SeaWorld ................ 4858
ii.
External Polls And News Stories Showed That Blackfish Had
Negatively Impacted The Publics Willingness To Attend
SeaWorld Parks ........................................................................ 5161
iii. The Blackfish Effect Swallowed SeaWorlds Annual Music
Festival...................................................................................... 5262
iv.
In The Wake Of Blackfish, Long-Standing SeaWorld Sponsors
And Strategic Partners Jumped Ship ........................................ 5565
v.
Proposed California Legislation Inspired By Blackfish
Threatened SeaWorlds Ability To Hold Captive Orcas In
California .................................................................................. 5868
The Truth Concerning Blackfishs Impact On SeaWorld Emerges.... 5969
The Aftermath Of The Fraud 64 and the Continued Impact of Blackfish
................................................................................................................. 83
SeaWorlds About Face .......................................................................... 89

VI.

DEFENDANTS MATERIALLY FALSE AND MISLEADING


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STATEMENTS AND OMISSIONS OF MATERIAL FACT SECURITIES


ACT CLAIMS ............................................................................................ 89VII.
..........................................................ADDITIONAL SCIENTER ALLEGATIONS 111

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B.

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VII. ADDITIONAL SCIENTER ALLEGATIONS EXCHANGE


ACT CLAIMS ................................................................................................... 93

A.

B.

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Defendants Issued Materially False And Misleading Statements


In
The IPO Offering Materials .................................................................... 89
Defendants Issued Materially False And Misleading Statements
In The December And April SPO Offering Materials ............................ 91

Defendants Actual Knowledge Of And/Or Reckless Disregard For


Material Facts Contrary To Their Public Statements ....................... 93111
Motive And Opportunity Insider Selling By CEO Atchison......... 99117

VIIIVII. ................................................ LOSS CAUSATION EXCHANGE ACT CLAIMS


.................................................................................................................. 101 119
IXVIII. ....................................... PLAINTIFFS AND THE CLASS ARE ENTITLED TO A
PRESUMPTION OF RELIANCE EXCHANGE ACT CLAIMS ........ 104 123
XIX. THE STATUTORY SAFE HARBOR AND BESPEAKS CAUTION
DOCTRINE ARE INAPPLICABLE ........................................................ 106124
XIX. CLASS ACTION ALLEGATIONS ......................................................... 107125

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XIIXI. ................................................................................................................ CAUSES OF ACTION


................................................................................................................... 109127

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A.

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Claims Brought Pursuant To The Securities Act ............................................ 109


COUNT I For Violations Of Section 11 Of The Securities Act
(Against SeaWorld, The Individual Defendants And The Underwriter
Defendants) ..................................................................................................... 109
COUNT II For Violations Of Section 12(a)(2) Of The Securities Act
(Against SeaWorld, The Underwriter Defendants And Blackstone) .............. 111
COUNT III For Violations Of Section 15 Of The Securities Act
(Against The Individual Defendants And Blackstone) ................................... 113
B............................................................ Claims Brought Pursuant To The Exchange Act
......................................................................................................................... 115
COUNT IV For Violations Of Section 10(b) Of The Exchange Act And
Rule 10b(5) Promulgated Thereunder
(Against SeaWorld, Atchison, Heaney and Swanson)......115 and the Individual
Defendants) ..................................................................................................... 127
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COUNT VII For Violations Of Section 20(a) Of The Exchange Act


(Against Atchison, Heaney Swansonthe Individual Defendants and Blackstone)
................................................................................................................... 119131
XIIIXII. .......................................................................................................... PRAYER FOR RELIEF
................................................................................................................... 121133
XIVXIII. ............................................................................................... JURY TRIAL DEMANDED
................................................................................................................... 121133

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Second Amended Consolidated Amended Class Action Complaint
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1.

Court-Appointed Lead Plaintiffs, Arkansas Public Employees Retirement

System (APERS) and Pensionskassen For Brne-Og Ungdomspaedagoger (PBU)

(collectively, Lead Plaintiffs) and additional plaintiffs Oklahoma City Employee

Retirement System (Oklahoma) and Pembroke Pines Firefighters and Police

Officers Pension Fund (Pembroke) (the Additional Plaintiffs, and together with

Lead Plaintiffs, or Plaintiffs) bring this action individually and on behalf of all

persons and entities who: (i) purchased or otherwise acquired the publicly traded

common stock of SeaWorld Entertainment, Inc. (SeaWorld or the Company)1

between April 18,August 29, 2013 and August 12, 2014, inclusive (the Class

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Period); or (ii) purchased or otherwise acquired SeaWorld common stock pursuant or

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traceable to the materially false and misleading Registration Statements and

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Prospectuses issued in connection with the Initial Public Offering of SeaWorld

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Common Stock that occurred on or about April 18, 2013 (IPO) or the Secondary

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Public Offerings that occurred on or about December 12, 2013 and April 4, 2014 (the

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December SPO and April SPO, respectively), and who were damaged thereby

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(collectively, the Class). Excluded from the Class are: (i) Defendants (defined

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below); (ii) present or former executive officers of SeaWorld, members of SeaWorlds

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As used herein, SeaWorld shall refer to the corporate entity defined above. When
Defendants refer to attendance results in their filings with the United States Securities
and Exchange Commission (SEC) and on conference calls, they typically refer to
results at all eleven SeaWorld-owned parks collectively. Accordingly, Defendants
statements regarding attendance declines at SeaWorld, referenced herein, refer to all
eleven SeaWorld-owned parks as a whole. In contrast, Plaintiffs allegations regarding
attendance declines caused by Blackfish refer specifically to the three
SeaWorld-branded theme parks in Florida, Texas and California that house killer
whales (hereinafter the SeaWorld-branded parks), and shall not include the eight
parks that do not bear the SeaWorld moniker and are not alleged to house or
otherwise feature killer whales.
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Board of Directors, and members of their immediate families (as defined in 17 C.F.R.

229.404, Instructions (1)(a)(iii) and (1)(b)(ii)); (iii) any of the foregoing persons legal

representatives, heirs, successors or assigns; and (iv) any entity in which Defendants

have or had a controlling interest or any affiliate of SeaWorld.


2.

Plaintiffs allege the following based upon personal knowledge as to

themselves and their own acts and upon information and belief as to all other matters.

Plaintiffs information and belief is based upon a continuing investigation, conducted

by Plaintiffs counsel under Plaintiffs supervision, into the facts and circumstances

alleged herein including, without limitation, review and analysis of: (i) SeaWorlds

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filings with the United States Securities and Exchange Commission (SEC)SEC; (ii)

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securities and financial analysts reports concerning SeaWorld; (iii) SeaWorlds press

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conferences, investor and analyst conference calls, and corresponding transcripts

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thereof; (iv) SeaWorlds press releases and other public statements; (v) media and

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industry reports and other publications concerning SeaWorld and/or the other

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Defendants; (vi) interviews of confidential witnesses, including but not limited to,

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former SeaWorld employees; and (vii) SeaWorlds corporate website.

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believe that additional evidentiary support for the allegations herein will likely emerge

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after a reasonable opportunity to conduct discovery.

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I.

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Plaintiffs

INTRODUCTION12
3.

This action involves a series of false and misleading statements and

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omissions by Defendants regarding the critically acclaimed 2013 documentary

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Blackfish a film that would havehad a profound impact on SeaWorlds attendance at

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SeaWorld-branded parks3 throughout the Class Period, as it damaged the publics

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All emphasis herein is added unless otherwise noted.


SeaWorld admittedly does not break [] out attendance at specific parks in its SEC
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perception of SeaWorld and degraded the Companys core brand and business. When

SeaWorld finally came clean at the end of the Class Period and revealed that

attendance at the SeaWorld-branded parks had been negatively affected by the public

response to Blackfish, the Companys stock price plummeted by almost 33%.

SeaWorlds admission that declining attendance at its branded parks resulted, at least

in part, from Blackfish was disastrous for SeaWorlds investors, since a negative shift

in the public perception of SeaWorlds brand that caused consumers to shun the

parkbranded parks would starve the Company of the attendance-driven revenues on

which it depended. . The film ultimately would result in SeaWorld ending its orca

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breeding program and orca shows, a fundamental change to the Companys core

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business.

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4.

SeaWorld is an aquatic theme park and entertainment company best

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known for shows featuring orca whales (starting with the famous Shamu), which, until

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March 17, 2016, SeaWorld captured, bred and trained to perform at its three branded

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parks in Florida, Texas and California. Indeed, orca whales have been the core of

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SeaWorlds brand and operations. As Dave Goodman, former vice president and

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executive producer at SeaWorld Orlando put it, [r]eplacing Shamu to SeaWorld is

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like getting rid of Mickey to Disney. SeaWorlds Chief Executive Officer Defendant

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James Atchison (Atchison) agreed, telling Bloomberg in November 2014: Our

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killer whales, our killer whale program, and all of our animals are emblematic of the

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whole brand.

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filings, and on conference calls, its executives decline[] to offer more specific
figures[.] Therefore, investors only source of park-by-park attendance figures is the
TEA Reports, discussed herein, and which showed dramatic attendance declines at two
of SeaWorlds three branded parks (Orlando and San Diego) during the Class Period.
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5.

4. SeaWorld is an aquatic theme park and entertainment company best

known for shows featuring orca whales (starting with the famous Shamu), which

SeaWorld captures, breeds and trains to perform. Like most theme parks, SeaWorld

derives the majority of its revenues from ticket sales. Thus, SeaWorlds financial

health is directly tied to its ability to attract, grow and maintain attendance at its parks.

6.

5. Shortly before the start of the Class Period and the Companys initial

public offering (IPO), Blackfish was released.

Cowperthwaite makes the case that SeaWorld a company that purports to create

distinctive entertainment experiences that blend imagination with a passion for

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nature actually harms both its captive orca whales and their trainers by unnaturally

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confining the orcas in small spaces and forcing them to perform tricks for audiences.

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Blackfish portrays SeaWorlds business as turning sensitive and social creatures into

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aggressively dangerous animals for the purposes of public entertainment and financial

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gain to SeaWorld. After its release, the film garnered the attention of the country,

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including the media, celebrities, animal rights activists and California lawmakers, who

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proposed legislation banning orca performances in the state.

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In Blackfish, director Gabriela

6. Following the release of Blackfish, SeaWorld-branded parks

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experienced a pronounced trend of significant, unprecedented attendance declines for

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four consecutive quarters during the Class Period following the release of Blackfish.

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SeaWorld would blame the entirety of these declines on everything but Blackfish

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namely, adverse weather conditions, holiday and school schedules, and SeaWorlds

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pricing strategies. This was not plausible. Yet, when directly questioned whether

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Blackfish was contributing to the steep attendance declines, Defendants repeatedly

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assured the market the film had not contributed at all and went so far as to suggest,

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even suggesting the film was having a positive impact onpositively impacting the

Company.

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When SeaWorld finally came clean at the end of the Class Period and

revealed that attendance at its parks had been negatively affected by the public

response to Blackfish, the Companys stock price plummeted almost 33%. SeaWorlds

admission that declining attendance resulted, at least in part, from Blackfish rather than

the short-lived effects of weather and/or school and holiday calendars was disastrous

for SeaWorlds investors, since a negative shift in the public perception of SeaWorlds

brand that caused consumers to shun the park would starve the Company of the

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attendance-driven revenues on which it depended.


8.

By the first day of the Class Period,time SeaWorld went public, on April

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18, 2013, Blackfish had premiered at the world-renowned Sundance Film Festival and

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had been acquired by CNN Films and Magnolia Pictures which immediately

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announced plans to screen the film broadly beginning in the summer of 2013. The

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documentary had already generated a powerful public and media response, was

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persistently trending on social media such as Twitter, and was the focus of aggressive

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public relations campaigns led by the People for the Ethical Treatment of Animals

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(PETA). Not only was SeaWorld was acutely aware of these facts, it and was

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actively working to counteract the so-called Blackfish effect through. Internally, a

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former SeaWorld employee reported that SeaWorld adopted an extremely hush-hush

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policy, feeding [SeaWorld employees] lines, instructing SeaWorld employees to

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dissuade family and friends from seeing the film, and, most egregiously, holding a

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collective meeting before [Blackfish] came out telling [SeaWorld employees] to say it

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was fake[.] Externally, SeaWorld waged war on the Blackfish effect by investing

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millions of dollars into an extensive public relations campaign. Notwithstanding these

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highly material facts, SeaWorld failed to mention the film by name in any of its April

18, 2013 amended Registration Statement on Form S-1/A and April 19, 2013

prospectus on Form 424B4 (IPO Offering Materials (defined below at 29). Instead,

SeaWorld offered only a generalized reference to the fact that accidents or adverse

publicity may potentially harm SeaWorlds reputation, attendance and business at

some point in the future.

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As SeaWorlds attendance continued to decline, SeaWorld repeated these

generalized references in the Companys quarterly, annual and offering-related SEC

filings throughoutprior to the Class Period, and continued to fail to acknowledge that

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Blackfish was already having a present impact on attendance. For example, in its first

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quarter results announced on May 23, 2013 (1Q13), SeaWorld parroted its earlier

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statement that adverse publicity may potentially harm SeaWorld in the future.

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10.

By the time SeaWorld announced its second quarter results on August 13,

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2013 (2Q13) which disclosed that SeaWorld had suffered a 9.5% decline in

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attendance Blackfish had been released in theaters across the United States, and also

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had been released in various formats internationally.

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dramatically intensified its public relations campaign against Blackfish, which

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included distributing a detailed critique of the film, calling it a dishonest movie.

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Despite these highly material facts, SeaWorld omitted any mention of Blackfish its

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2Q13 earnings announcement.

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attendance drop to three distinct factors, with each supposedly accounting for an equal

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one-third of the decline: (i) new pricing strategies, (ii) adverse weather conditions, and

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(iii) the unfavorable timing of Easter, which caused an overlap with the spring

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break holiday period for schools. On the first day of the Class Period, August 29,

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2013, the Los Angeles Times questioned whether the decline in attendance was also

Moreover, SeaWorld had

Instead, Defendants attributed the entire 9.5%

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attributable to the ever-growing Blackfish effect. In direct response, Vice President of

Communications Fred Jacobs (Jacobs), speaking on behalf of the Company, flatly

denied that Blackfish or the public backlash spurred by the film was hurting

attendance, stating that Blackfish has had no attendance impact. That same day,

Jacobs told Bloomberg that the Company can attribute no attendance impact at all to

the movie. From August 29, 2013 through the end of the Class Period on August 13,

2014, SeaWorld would continue to assure investors that there were no uncertainties at

all in regard to whether Blackfish was having a negative impact on SeaWorlds

attendance, core brand and business.

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11.

Although SeaWorld publicly denied the effects of Blackfish, it was

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concerned enough about the negative publicity from the film to hire publicist 42West

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to lead a public relations blitz against Blackfish. The Wire reported [the] magnitude

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of th[e] response [wa]s odd and that it was rare for a corporation to target a

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documentary, hire a film publicist and make sure critics and journalists are informed

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of the Companys response to a film.

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Blackfishs impact on August 29, 2013, Jacobs contacted fifty (50) major film

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reviewers to discredit Blackfish, a move that industry insiders noted was extremely

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unusual. And, SeaWorld devoted a portion of its website to The Truth About

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Blackfish.

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Further, just a month before denying

Even more egregiously, according to SeaWorlds own subsequent

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admission, SeaWorld sent employees to infiltrate PETA and pose as animal rights

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activists, a campaign that Bloomberg began at least as early as Thanksgiving of 2013.

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SeaWorld finally came clean to this espionage campaign on a February 26, 2016

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earnings call through a statement that NonProfit Quarterly interpreted as admit[ting]

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that the practice of spying was at least authorized and possibly intentionally utilized by

some in management[.]

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11. SeaWorlds attendance continued to decline. By the time SeaWorld

announced its third quarter (3Q13) results on November 13, 2013 which disclosed

that attendance at all SeaWorld parks had dropped another 3.6% for the third quarter

Blackfish had been broadcast on CNN to millions of people during a highly publicized

screening. The public outcry regarding the film had reached a fever pitch, yet

SeaWorld incredibly continued to blame its declining attendance on adverse weather

conditions in July and pricing strategies implemented the prior quarter.

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12. Doubling down, on November 14 and December 20, 2013,

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SeaWorlds Chief Executive Officer James Atchison (Atchison)Atchison repeatedly

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told the public that Blackfish was having no impact at all on the Company. Yet, at the

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same time Atchison was publicly denouncing any notion that Blackfish was

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contributing to shrinking attendance, SeaWorld published an open letter rebutting the

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claims made in the film. Commenting on this move, CNN noted, you have to

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wonderwhy they would go to such an expense if Blackfish truly was not having any

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impact whatsoever on attendance.

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13. The furor surrounding Blackfish continued acrossthroughout 2013 and

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into 2014, as celebrity musicians noisily pulled out of concerts at SeaWorld-branded

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parks, and long-time corporate sponsors started to cut ties.

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14. On March 7, 2014, it was announced that legislation had been

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introduced that would ban orca performances in the state of California. The proposed

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legislation, if passed, would have a devastating effect on SeaWorlds operations, and

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received intense media coverage. The proposed legislation was so closely associated

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with Blackfish that it became known in the popular press as the Blackfish Bill. Just

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days after this announcement, on March 13, 2014, SeaWorld announced its fourth

quarter (4Q13) and full year (FY13) financial results, which disclosed aan overall

decline in attendance for the third consecutive quarter. Moreover, the Company

reported that full year attendance in 2013 had declined by 4.1%, or approximately one

million guests. Again, SeaWorld blamed the declines on everything but Blackfish

namely, pricing and yield management strategies for the fourth quarter

declinesdecline, and adverse weather conditions and holiday schedules for the full year

decline.

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15. Significantly, in stark contrast to SeaWorld, each of SeaWorlds

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maintwo primary competitors in the same geographic regions, Orlando, Florida and

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Southern California areasThe Walt Disney Company (Disney) and Universal

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Parks and Resorts (Universal), attainedsaw either comparable or increased

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attendance figures (over the prior year) in 2013:in 2013 over the prior year. Similarly,

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Disney and Universal parks in Florida and California saw comparable or increased

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attendance in 2014, while SeaWorld Orlando suffered an 8.0% decline in attendance

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and SeaWorld San Diego suffered a 12.0% decline in attendance. Remarkably,

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SeaWorld Orlando and SeaWorld San Diego were the only parks who saw attendance

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declines in 2013 and 2014, as the following chart depicts:

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Park

Location

2012
Attendance

2013
Attendance

Change (%)

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Magic Kingdom
[Disney]

Lake Buena
Vista, FL

17,536,000

18,588,000

6.0%

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Disneyland
[Disney]

Anaheim,
CA

15,963,00
0

16,202,00
0

1.5%

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Epcot [Disney]

11,063,000

11,229,000

1.5%

9,998,000

10,198,000

2.0%

9,912,000

10,110,000

2.0%

24
25

Animal Kingdom
[Disney]
Hollywood
Studios [Disney]

Lake Buena
Vista, FL
Lake Buena
Vista, FL
Lake Buena
Vista, FL

2013
Attenda
nce
18,588,0
00

2014
Attenda
nce
19,332,0
00

Chan
ge
(%)
4.0%

11,229,0
00
10,198,0
00
10,110,0
00

11,454,0
00
10,402,0
0
10,312,0
00

2.0%
2.0%
2.0%

26
27

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Case 3:14-cv-02129-MMA-KSC Document 123-1 Filed 05/31/16 Page 16 of 175

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

Cal.
Adventure
[Disney]

Anaheim,
CA

7,775,000

8,514,000

9.5%

Orlando, FL

7,981,000

8,141,000

2.0%

8,141,00
0

Orlando, FL

6,195,000

7,062,000

14.0%

7,062,00
0

Orlando, FL

5,358,000

5,090,000

-5.0%

5,090,00
0

Anaheim, CA

15,963,000

16,202,000

1.5%

Anaheim, CA

7,775,000

8,514,000

9.5%

Universal City,
CA

5,912,000

6,148,000

4.0%

SeaWorld
Orlando
[SeaWorld]

Orlando,
FL

5,358,000

5,090,000

-5.0%

SeaWorld San
Diego [SeaWorld]

San Diego, CA

4,444,000

4,311,000

-3.0%

Busch
Gardens
Tampa
[SeaWorld]

Tampa,
FL

4,348,000

4,087,000

-6.0%

Islands of
Adventure
[Universal]
Universal Studios
Florida
[Universal]
SeaWorld
Orlando
[SeaWorld]
Disneyland
[Disney]
Cal. Adventure
[Disney]
Universal Studios
Hollywood
[Universal]

18.

16,202,0
00
8,514,00
0
6,148,00
0

4,311,00
0

8,141,00
0

0.0%

8,263,00
0

17.0
%

4,683,00
0
16,769,0
00
8,769,00
0

-8.0%

6,824,00
0

11.0
%

3,794,00
0

-12.0
%

3.5%
3.0%

Further, historical attendance figures demonstrate that attendance at

SeaWorld-branded parks, Disney parks and Universal parks in the Florida and
California areas ordinarily rise and fall together. For example, attendance across all
SeaWorld-branded parks, Disney parks and Universal parks in Florida and California
increased in 2011. Similarly, attendance across all SeaWorld-branded parks, Disney
and Universal parks in Florida and California increased in 2012, with the lone
exception of Disneyland in Anaheim, California, which saw a slight 1.0% decrease.
These directionally-correlated historical attendance figures demonstrate that the
dramatic attendance declines SeaWorld-branded parks saw in 2013 and 2014 had to be
the result of Blackfish and not the other generic excuses SeaWorld offered. The

26
27

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Case 3:14-cv-02129-MMA-KSC Document 123-1 Filed 05/31/16 Page 17 of 175

following graph depicts the 2010-2012 attendance figures at SeaWorld as compared to

Disney and Universal parks in the Orlando and Southern California markets:

3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25

Park

Location

Magic Kingdom
[Disney]
Epcot [Disney]

Lake Buena
Vista, FL
Lake Buena
Vista, FL
Lake Buena
Vista, FL
Lake Buena
Vista, FL
Orlando, FL

Animal Kingdom
[Disney]
Hollywood
Studios [Disney]
Islands of
Adventure
[Universal]
Universal Studios
Florida
[Universal]
SeaWorld
Orlando
[SeaWorld]
Disneyland
[Disney]
Cal. Adventure
[Disney]
Universal Studios
Hollywood
[Universal]
SeaWorld San
Diego [SeaWorld]

19.

2010
Attendance

2011
Attendance

Change
(%)

2011
Attendance

2012
Attendance

Change
(%)

16,972,000
10,825,000

17,142,000
10,825,000

1.0%
0.0%

17,142,000
10,825,000

17,536,000
11,063,000

2.3%
2.2%

9,686,000

9,783,000

1.0%

9,783,000

9,998,000

9,603,000

9,699,000

1.0%

9,699,000

9,912,000

5,949,000

7,674,000

29.0%

7,674,000

7,981,000

2.2%
2.2%
4.0%

Orlando, FL

5,925,000

6,044,000

2.0%

6,044,000

6,195,000

2.5%

Orlando, FL

5,100,000

5,202,000

2.0%

5,202,000

5,358,000

3.0%

Anaheim, CA

15,980,000

16,140,000

1.0%

16,140,000

15,963,000

-1.1%

Anaheim, CA

6,278,000

6,341,000

1.0%

6,341,000

7,775,000

Universal
City, CA

5,040,000

5,141,000

2.0%

5,141,000

5,912,000

22.6%
15.0%

San Diego,
CA

3,800,000

4,294,000

13.0%

4,294,000

4,444,000

3.5%

The historical attendance figures also confirm that the addition of new

attractions at Disney or Universal was not the reason for the attendance declines in
2013 and 2014 at the SeaWorld-branded parks in Orlando and San Diego. According
to a July 18, 2014 report by the Motley Fool entitled Why These 2 Theme Park
Operators Dont Fear Competition, [t]heme park operators like Six Flags [] and
SeaWorld Entertainment . . . are far more immune to competition than most companies
in other businesses. Indeed, historically, attendance at all of the parks rose, even as a
particular park might see sharp increases because of a new attraction. For example,

26
27

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Case 3:14-cv-02129-MMA-KSC Document 123-1 Filed 05/31/16 Page 18 of 175

according to the annual report of Themed Entertainment Association (TEA) in 2011,

Theme and Museum Index Global Attractions Attendance Report (the 2011 TEA

Report), that year Universal Orlandos Islands of Adventure park saw a magical

increase in attendance of 29% because of its new Harry Potter attraction. That same

year, SeaWorld Orlandos attendance also increased, albeit by 2%.

according to TEAs 2012 attendance report, in 2012, California Adventure and

Universal Studios saw industry-leading increases of 22.6% and 15% as a result of their

respective additions of CarsLand and Transformers: the Ride 3-D, while SeaWorld San

Diego still saw an attendance increase of 3.5%. These historical figures indicate that it

10

was Blackfish and not the success of new attractions at other parks that led to

11

attendance declines at SeaWorld-branded parks.

12

20.

Similarly,

Indeed, a May 25, 2016 Los Angeles Times article acknowledged the

13

impact of Blackfish on attendance at the SeaWorld-branded parks compared to its

14

competitors since 2013. The article quoted Brian Sands, Vice President of Aecom,

15

which produces the annual TEA reports, stating: Over the last couple years, the

16

aggregate increase of the 20 top performing theme parks in North America was

17

between 2% and 3.5%--good, steady, moderate growth. But it positively leapt beyond

18

that in 2015 to an impressive 5.9%. The article went on to note:

19
20
21
22
23

The [2015 TEA Report] didnt speculate why SeaWorld lost ground
last year, . . . but the marine park has acknowledged that it has
foundered in its efforts to improve its image in the face of criticism
from animal rights groups. Attendance numbers at the marine-themed
park have been flagging since the release of the 2013 documentary
Blackfish . . .

24
25
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1
2
3

21.

16. As alleged below, SeaWorlds allocation of its entire attendance

declines to factors other than Blackfish is simply not believableplausible.


22.

17. During the 4Q13 earnings call, analysts specifically pressed

Defendants to discuss Blackfish, asking Atchison to comment on whether theres any

impact that youve noticed at all on satisfaction or attendance. In response, Atchison

noted: I get asked that a lot and proceeded to deny multiple times that SeaWorld had

seen any such impact, stating: As much as were asked it, we can see no noticeable

impact on our business. Moreover, Atchison surprisingly claimed that Blackfish was

positively impacting SeaWorld by increasing awareness of SeaWorlds brand.

10

23.

18. The Blackfish effect continued to resound in the public, and

11

SeaWorlds attendance slide continued along with it. On May 14, 2014, for the fourth

12

consecutive quarter, SeaWorld disclosed the largest attendance decline yet a

13

staggering 13%. Still refusing to acknowledge the truth, SeaWorld blamed the timing

14

of Easter and Spring Break and adverse weather in Florida and Texas and excluded

15

Blackfish-related issues as the causes of the decline.

16

24.

At the same time SeaWorld was publicly denying the obvious effects of

17

Blackfish, the Company was pouring money into an aggressive counterattack against

18

the film and its supporters. In 2014, SeaWorlds public relations counterattack

19

continued, including increased retaliation using websites and social media.

20

example, SeaWorld provided funding for Awesome Oceana website run by a digital

21

marketing and brand management expertthat is fiercely critical of Blackfish and its

22

supporters. Speaking to the Orlando Sentinel, Jacobs affirmed the importance of

23

social media sites like Awesome Ocean to SeaWorld, stating I would certainly

24

characterize them as an important part of our marketing and communications strategy.

25

It is clear from SeaWorlds ample and costly response to Blackfish throughout 2013

For

26
27

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Case 3:14-cv-02129-MMA-KSC Document 123-1 Filed 05/31/16 Page 20 of 175

and 2014, the Company was aware of, and attempting to mitigate, the films impact on

its bottom line. Yet, SeaWorld continually refused to acknowledge that known impact

to its own investors.

25.

19. Finally, before the start of trading on August 13, 2014, after sixteen

monthsa year of express denials, excuses and omissions, SeaWorld finally admitted

that Blackfish-related issues were hurting attendance at its parks. Although SeaWorld

still refused to call Blackfish by name, the Company acknowledged, attendance in the

quarter was impacted by demand pressures related to recent media attention

surrounding proposed legislation in the state of California (i.e., the Blackfish Bill).

10

The entire market saw this for what it was: SeaWorlds first and long overdue public

11

admission that Blackfish had been impacting SeaWorlds attendance all along. Indeed,

12

as demonstrated in 168-75 infra, the national media and analysts alike uniformly

13

recognized that despite SeaWorlds refusal to name Blackfish, SeaWorld was

14

nevertheless acknowledging the impact of the film on its attendance. Moreover,

15

although SeaWorlds announcement only referred to the 2Q14 attendance decline, it

16

was widely recognized as a long overdue acknowledgment of Blackfishs impact on

17

the Company since the film debuted. In direct response to this disclosure, SeaWorld

18

shares lost almost 33% of their value, falling from $28.15 per share at closing on

19

August 12, 2014 to $18.90 per share on August 13, 2014, on extremely heavy volume.

20

The markets reaction to this news signaled that until this announcement, investors had

21

taken the Company at its word that issues surrounding Blackfish were not causing

22

damage to SeaWorlds brand and reputation a much different and more significant

23

threat to the Companys ability to generate future earnings than the fleeting effects of

24

weather or the school and holiday calendars that Defendants had blamed for

25

SeaWorlds attendance slide.

26
27

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26.

The impact of Blackfish on SeaWorlds business is unmistakable. Indeed,

after SeaWorlds disclosure, attendance and revenues continued to decline owing to

shifting public opinion as a result of Blackfish. On March 17, 2016, SeaWorld

announced an end to its orca breeding program and orca trick shows, a historic shift in

its business model. The announcement was a tacit acknowledgement that SeaWorld

could no longer afford to deny the profound impact Blackfish has had on its business or

continue to blatantly ignore the data showing a clear shift in public sentiment regarding

its killer whale program. Reporting on the announcement, ABC News noted, Manby .

. . acknowledged that Blackfish did have an impact[.] Another article entitled

10

How One Documentary Brought SeaWorld To Its Knees, emphasized the profound

11

impact Blackfish had on SeaWorlds core business and operations:

12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27

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27.

Manby cast SeaWorlds dramatic operational shift as a necessary

response to public opinion and the Companys own data regarding public sentiment.

According to the Orlando Sentinel, Manby told fans in an online forum I understand

you may feel betrayed . . . [b]ut . . . the data showed, and trends showed, it was a

SeaWorld without whales or it would probably be a world without SeaWorld. In

other words, Manby and SeaWorld could not continue to deny the profound impact of

Blackfish or ignore the Companys own public opinion data, as his predecessor had

done, and remain viable. Indeed, the Wall Street Journal reported that as a result of the

announcement, SeaWorld expects to save $15 million in reputational-management

10

costs, and it sees attendance rising by 380,000 to 940,000 in the next three to five years.

11

. . . SeaWorld also expects revenue to increase by $20 million to $80 million during the

12

same time frame.

13

28.

Following SeaWorlds historic announcement, investors and experts

14

questioned why the Company took so long to come to this decision. For example,

15

activist investor Greg Taxin, whose Luma Asset Management has a 4% stake in

16

SeaWorld, commented [w]e believe the company took far too long to respond

17

effectively to the challenge of Blackfish. Likewise, theme park consultant Dennis

18

Speigel recognized that the move away from killer whale shows was a prudent

19

business decision by Manby, stating: [t]he SeaWorld in 10 years will not be the

20

SeaWorld we know today, and make no mistake, this is all emanating from Joel

21

Manbys management position.

22

29.

20. Based on the facts alleged herein, Plaintiffs assert claims under:

23

(i) Section 10(b) of the Exchange Act (defined below) against SeaWorld, Atchison,

24

James M. Heaney (Heaney) and Marc G. Swanson (Swanson); and (ii) Section

25

20(a) of the Exchange Act against Atchison, Heaney, Swanson and Blackstone Group

26
27

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Case 3:14-cv-02129-MMA-KSC Document 123-1 Filed 05/31/16 Page 23 of 175

L.P. (Blackstone); (iii) Section 11 of the Securities Act (defined below) against

SeaWorld, the Individual Defendants and the Underwriter Defendants (defined

below); (iv) Section 12(a)(2) of the Securities Act against SeaWorld, the Underwriter

Defendants and Blackstone; and (v) Section 15 of the Securities Act against the

Individual Defendants and Blackstone.

II.

JURISDICTION AND VENUE


30.

21. The claims asserted herein arise under and pursuant to Sections 10(b)

and 20(a) of the Securities Exchange Act of 1934 (15 U.S.C. 78j(b) and 78t(a)) (the

Exchange Act), and Rule 10b-5 promulgated thereunder by the SEC (17 C.F.R.

10

240.10b-5) (Rule 10b-5), and pursuant to Sections 11, 12(a)(2) and 15 of the

11

Securities Act of 1933 (15 U.S.C. 77k, 77l(a)(2), and 77(o)) (the Securities Act).

12

31.

22. This Court has jurisdiction over the subject matter of this action

13

pursuant to 28 U.S.C. 1331 and 1337 and Section 27 of the Exchange Act (15 U.S.C.

14

78aa), and Section 22 of the Securities Act (15 U.S.C. 77v).

15

32.

23. Venue is proper in this District pursuant to Section 27 of the Exchange

16

Act, and 28 U.S.C. 1391(b) and Section 22 of the Securities Act (15 U.S.C. 77v).

17

Certain of the acts, practices and transactions complained of herein, including the

18

dissemination of materially false and misleading information, occurred in this District.

19
20

III.

THE PARTIES

21

A.

Lead Plaintiffs

22

33.

24. APERS is a multi-employer defined benefit retirement plan for

23

employees of the State of Arkansas. APERS was created by statute in 1957. On behalf

24

of its approximately 77,000 participants, APERS has approximately $7.5 billion in

25

assets under management. As reflected in its certification filed previously in this

26

action (ECF No. 13-4), APERS purchased shares of SeaWorlds common stock in the
17
Second Amended Consolidated Amended Class Action Complaint
Case No. 14-cv-2129

27

Case 3:14-cv-02129-MMA-KSC Document 123-1 Filed 05/31/16 Page 24 of 175

December SPO, the April SPO and during the Class Period and has been damaged as a

result of the conduct complained of herein.

34.

25. PBU is a Danish pension fund for teachers. PBU was established in

1976. On behalf of its approximately 110,000 members, PBU has approximately $7.5

billion in assets under management. As reflected on its certification filed previously in

this action (ECF No. 13-3), PBU purchased shares of SeaWorlds common stock in the

December SPO, the April SPO and during the Class Period and has been damaged as a

result of the conduct complained of herein.

B.

Additional Plaintiffs

10

26.

Oklahoma is a fund that provides pension and survivor benefits to all

11

full-time civilian employees of the City of Oklahoma City. Oklahoma was established

12

in 1958. On behalf of its more than 3,900 beneficiaries and active and inactive

13

participants, Oklahoma has approximately $635 million in assets under management.

14

As reflected on its certification filed previously in this action (ECF No. 12-3),

15

Oklahoma purchased shares of SeaWorlds common stock in the IPO, the December

16

SPO and during the Class Period and has been damaged as a result of the conduct

17

complained of herein.

18

27.

Pembroke is a fund that provides pension and disability benefits to its

19

participating members, including both active and retired firefighters, police officers,

20

and their beneficiaries.

21

approximately $436 million in assets under management.

22

certification filed previously in this action (ECF No. 12-3), Pembroke purchased

23

shares of SeaWorlds common stock in the IPO, the April SPO and during the Class

24

Period and has been damaged as a result of the conduct complained of herein.

Pembroke was established in 1979.

Pembroke has

As reflected on its

25
26
27

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Case 3:14-cv-02129-MMA-KSC Document 123-1 Filed 05/31/16 Page 25 of 175

B.

C. The Corporate Defendant

35.

28. SeaWorld, a Delaware corporation headquartered in Orlando, Florida,

is a theme park and entertainment company that owns and operates eleven theme parks

within the United States (U.S.), including: (i) three SeaWorld-branded theme parks

in Orlando, Florida,; San Antonio, Texas,; and San Diego, California; (ii) Busch

Gardens theme parks in Tampa, Florida,; and Williamsburg, Virginia; (iii) water park

attractions in Orlando, Florida (Aquatica),; Tampa, Florida (Adventure Island) and

Williamsburg,

reservations-only attraction in Orlando offering interaction with marine animals; and

10

(v) Sesame Place, a seasonal park in Langhorne, Pennsylvania. SeaWorlds common

11

stock is publicly traded on the New York Stock Exchange under the symbol SEAS.

12

C.

13
14
15
16
17
18
19
20
21
22
23
24
25

Virginia

Country

USA);

(iv)

Discovery

Cove,

D. The Individual Defendants


i.

36.

(Water

Officer Defendants

29. Defendant Atchison served as SeaWorlds Chief Executive Officer

(CEO), President and Director from before the start of the Class Period until his
resignation effective January 15, 2015. Prior to serving as CEO, Atchison served as
President and Chief Operating Officer of Busch Entertainment Corporation from 2007
to 2009 and as Executive Vice President and General Manager of SeaWorld Orlando
from 2003 to 2007. As alleged below, during the Class Period, Atchison signed the
Companys SEC filings and made public statements in the following contexts and/or
documents that were materially false and misleading and/or omitted material facts: (i)
April 18, 2013 amended Registration Statement on Form S-1/A and April 19, 2013
prospectus on Form 424B4 (IPO Offering Materials); (ii) May 23, 2013 quarterly
report on Form 10-Q (1Q13 Form 10-Q) for the three-month period ended March 31,
2013; (iii) August 13, 2013 quarterly report on Form 10-Q for 2Q13 (2Q13 Form

26
27

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Case 3:14-cv-02129-MMA-KSC Document 123-1 Filed 05/31/16 Page 26 of 175

10-Q) for the three-month period ended June 30, 2013; (iv) August 13, 2013 press

release (2Q13 Press Release) announcing the Companys financial results for 2Q13;

(v) August 13, 2013 earnings conference call concerning the 2Q13 financial results

(2Q13 Earnings Call); (viduring the Class Period: (i) November 13, 2013 quarterly

report on Form 10-Q (3Q13 Form 10-Q) for the three-month period ended

September 30, 2013; (viiii) November 14, 20142013 statement to the Wall Street

Journal; (viii) December 9, 2013 amended Registration Statement on Form S-1/A and

December 12, 2013 prospectus on Form 424B4 (December SPO Offering

Materials); (ixiii) December 20, 2013 statement to the Orlando Sentinel; (xiv) March

10

13, 2014 conference call (4Q13 Earnings Call) concerning the Companys financial

11

results for the three-month period ended December 31, 2013; (xi) March 21, 2014

12

Form 10-K for the year ended December 31, 2013 (2013 Form 10-K); (xii) April 2,

13

2014 amended Registration Statement on Form S-1/A and April 4, 2014 prospectus on

14

Form 424B4 (April SPO Offering Materials); and (xiiiand (v) May 14, 2014

15

quarterly report on Form 10-Q (1Q14 Form 10-Q) for the three-month period ended

16

March 31, 2014 (1Q14). In addition, Atchison engaged in insider selling when he

17

personally sold 154,000 shares of SeaWorld common stock in eight sales that he

18

effectuated during a three-month window of the Class Period, amounting to

19

approximately 20% of his beneficially owned shares and yielding proceeds of over

20

$4.6 million.

21

37.

30. Defendant Heaney has served as SeaWorlds Chief Financial Officer

22

from before the start of the Class Period to present. Prior to joining SeaWorld, Heaney

23

served as Chief Financial Officer and Senior Vice President of Finance and Travel

24

Operations for Disney Cruise Line. As alleged below, during the Class Period, Heaney

25

signed the Companys SEC filings and made public statements in the following

26
27

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contexts and/or documents that were materially false and misleading and/or omitted

material facts: (i) IPO Offering Materials; (ii) 1Q13 Form 10-Q; (iii) 2Q13 Form

10-Q; (iv) 2Q13 Earnings Call; (vduring the Class Period: (i) 3Q13 Form 10-Q; (viii)

November 13, 2013 earnings conference call concerning the 3Q13 financial results

(3Q13 Earnings Call); (viiiii) 4Q13 Earnings Call; (viii) December SPO Offering

Materials; (ix) 2013 Form 10-K; (x) April SPO Offering Materials; (xiiv) 1Q14 Form

10-Q; and (xiiv) May 14, 2014 earnings conference call concerning the 1Q14 financial

results (1Q14 Earnings Call).

38.

31. Defendant Swanson has served as SeaWorlds Chief Accounting

10

Officer from before the start of the Class Period to present. Prior to joining SeaWorld,

11

Swanson served as the Corporate Controller of Busch Entertainment Corporation and

12

Vice President of Finance of Sesame Place. As alleged below, during the Class Period,

13

Swanson signed the Companys SEC filings and made public statements in the

14

following contexts and/or documents that were materially false and misleading and/or

15

omitted material facts: (i) IPO Offering Materials; (ii) 1Q13 Form 10-Q; (iii) 2Q13

16

Form 10-Q; (iv) 3Q13 Form 10-Q; (v) December SPO Offering Materials; (vii) 2013

17

Form 10-K; (viii) April SPO Offering Materials; and (ix(i) 3Q13 Form 10-Q; and (ii)

18

1Q14 Form 10-Q.

19
20

ii.
32.

Director Defendants

Defendant David F. DAlessandro (DAlessandro) has served as

21

SeaWorlds Chairman of the Board of Directors from before the start of the Class

22

Period to present. On January 15, 2015, he was named interim Chief Executive Officer

23

of the Company to replace Atchison. Prior to joining SeaWorld, DAlessandro served

24

as Chairman, President and Chief Executive Officer of John Hancock Financial

25

Services.

As alleged below, during the Class Period, DAlessandro signed the

26
27

21
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Companys SEC filings and made public statements in the following contexts and/or

documents that were materially false and misleading and/or omitted material facts: (i)

IPO Offering Materials; (ii) December SPO Offering Materials; (iii) 2013 Form 10-K;

and (iv) April SPO Offering Materials.

33.

Defendant Bruce McEvoy (McEvoy) served on SeaWorlds Board of

Directors during the Class Period. As alleged below, during the Class Period, McEvoy

signed the Companys SEC filings and made public statements in the following

contexts and/or documents that were materially false and misleading and/or omitted

material facts: (i) IPO Offering Materials; (ii) December SPO Offering Materials; and

10
11

(iii) April SPO Offering Materials.


34.

Defendant Peter Wallace (Wallace) served on SeaWorlds Board of

12

Directors during the Class Period. As alleged below, during the Class Period, Wallace

13

signed the Companys SEC filings and made public statements in the following

14

contexts and/or documents that were materially false and misleading and/or omitted

15

material facts: (i) IPO Offering Materials; (ii) December SPO Offering Materials; and

16

(iii) April SPO Offering Materials.

17

35.

Defendant Joseph Baratta (Baratta) served on SeaWorlds Board of

18

Directors during the Class Period. As alleged below, during the Class Period, Baratta

19

signed the Companys SEC filings and made public statements in the following

20

contexts and/or documents that were materially false and misleading and/or omitted

21

material facts: (i) IPO Offering Materials; (ii) December SPO Offering Materials; and

22

(iii) April SPO Offering Materials.

23

36.

Defendant Judith A. McHale (McHale) served on SeaWorlds Board of

24

Directors during the Class Period. As alleged below, during the Class Period, McHale

25

signed the Companys SEC filings and made public statements in the following

26
27

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contexts and/or documents that were materially false and misleading and/or omitted

material facts: (i) IPO Offering Materials; (ii) December SPO Offering Materials; and

(iii) April SPO Offering Materials.

37.

Defendant Deborah M. Thomas (Thomas) served on SeaWorlds Board

of Directors during the Class Period. As alleged below, during the Class Period,

Thomas signed the Companys SEC filings and made public statements in the April

SPO Offering Materials that were materially false and misleading and/or omitted

material facts.

9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25

39.

38. The Defendants referenced above in 29-37 areAtchison, Heaney

and Swanson are collectively referred to herein as the Individual Defendants.


D.

E. The Blackstone Group L.P.

40.

Defendant Blackstone is a multinational private equity, investment

banking, alternative asset management and financial services corporation based in


New York, New York. On December 1, 2009, investment funds associated with
Blackstone and certain co-investors acquired 100% of the equity interests of SeaWorld
LLC and SeaWorld Parks & Entertainment LLC from certain subsidiaries of
Anheuser-Busch Companies, Inc. Throughout the Class Period, Blackstone exercised
substantial control over SeaWorlds operations by, inter alia, ensuring that Blackstone
executives were seated on SeaWorlds board of directors and organizing and executing
including SeaWorlds issuance and sales of common stock. Following the Blackfish
premiere in January of 2013, Blackstone aggressively and steadily sold its ownership
interest in SeaWorld to generate about $2.2 billion in a pattern that the New York Post
described in August of 2014 as follows: In this murky financial situation, one thing is
clear: The Blackstone Group, which bought SeaWorld less than five years ago, is
feeling a lot less pain than some other shareholders.

26
27

23
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41.

39. Defendant Blackstone is a multinational private equity, investment

banking, alternative asset management and financial services corporation based in

New York, New York. On December 1, 2009, investment funds associated with

Blackstone and certain co-investors acquired 100% of the equity interests of SeaWorld

LLC and SeaWorld Parks & Entertainment LLC from certain subsidiaries of

Anheuser-Busch Companies, Inc. Throughout the Class Period, Blackstone exercised

substantial control over SeaWorlds operations, including SeaWorlds issuance and

sales common stock. InSpecifically, in the IPO, Blackstone sold 19.9 million shares of

SeaWorld common stock, after which it continued to own approximately 63.3% of the

10

outstanding common stock of SeaWorld and thus maintained the majority of the voting

11

power of all outstanding shares of the Companys common stock. In the secondary

12

offering of SeaWorld common stock that occurred on or about December 12, 2013

13

(December SPO), Blackstone sold an additional eighteen (18) million shares of

14

SeaWorld common stock, after which it continued to own approximately 42.8% of the

15

outstanding common stock of SeaWorld. In the secondary offering of SeaWorld

16

common stock that occurred on or about April 4, 2014 (April SPO), Blackstone sold

17

another fifteen (15) million shares of SeaWorld common stock, after which it

18

continued to own approximately 25% of the outstanding common stock of SeaWorld.

19

Today, Blackstone owns 22.5Concurrently with the closing of the April SPO,

20

Blackstone also sold 1,750,000 shares of its own common stock directly to SeaWorld

21

as a part of a private share repurchase program. As of December 31, 2015, Blackstone

22

owned approximately 22.2% of SeaWorlds outstanding common stock. While after

23

the December and April SPOs, Blackstone no longer owned the majority stake,

24

SeaWorld stated in its public filings during the Class Period that Blackstone will

25

continue to be able to significantly influence [SeaWorlds] decisions.

Indeed,

26
27

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Blackstones steady decline in its SeaWorld position following the premiere of

Blackfish and throughout the Class Periodwhile Blackstone was privy to material

non-public information regarding SeaWorlds operationswas staggering.

F.

The Underwriter Defendants

40.

Defendant Barclays Capital Inc. (Barclays) was an underwriter of the

6
7
8
9
10
11

IPO, the December SPO and the April SPO.


41.

Defendant Blackstone Capital Markets (Blackstone Capital) was an

underwriter of the IPO, the December SPO and the April SPO.
42.

Defendant Citigroup Global Markets Inc. (Citigroup) was an

underwriter of the IPO, the December SPO and the April SPO.
43.

Defendant Deutsche Bank Securities Inc. (Deutsche Bank) was an

12

underwriter of the December SPO and the April SPO. Deutsche Bank was a Lead

13

Underwriter of the December SPO.

14
15
16

44.

Defendant Drexel Hamilton, LLC (Drexel Hamilton) was an

underwriter of the IPO, the December SPO and the April SPO.
45.

Defendant Goldman, Sachs & Co. (Goldman) was an underwriter of the

17

IPO, the December SPO and the April SPO. Goldman was a Lead Underwriter of the

18

December SPO and the April SPO.

19

46.

Defendant J.P. Morgan Securities LLC (J.P. Morgan) was an

20

underwriter of the IPO, the December SPO and the April SPO. J.P. Morgan was a

21

Lead Underwriter of the December SPO and the April SPO.

22
23
24
25

47.

Defendant KeyBanc Capital Markets Inc. (KeyBanc) was an

underwriter of the IPO, the December SPO and the April SPO.
48.

Defendant Lazard Capital Markets LLC (Lazard) was an underwriter of

the IPO, the December SPO and the April SPO.

26
27

25
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49.

1
2

underwriter of the IPO, the December SPO and the April SPO.

3
4

50.

51.

52.

Defendant Piper Jaffray & Co. (Piper Jaffray) was an underwriter of the

December SPO and the April SPO.

9
10

Defendant Nomura Securities International, Inc. (Nomura) was an

underwriter of the IPO and the December SPO.

7
8

Defendant Merrill Lynch, Pierce, Fenner & Smith Incorporated (Merrill

Lynch) was an underwriter of the IPO, the December SPO and the April SPO.

5
6

Defendant Macquarie Capital (USA) Inc. (Macquarie) was an

53.

Defendant Samuel A. Ramirez & Company, Inc. (Samuel A. Ramirez)

was an underwriter of the IPO, the December SPO and the April SPO.

11

54.

12

the April SPO.

13

55.

14

Defendant Telsey Advisory Group LLC (Telsey) was an underwriter of

Defendant Wells Fargo Securities, LLC (Wells Fargo) was an

underwriter of the IPO, the December SPO and the April SPO.

15

56.

Defendants Barclays, Blackstone Advisory, Citigroup, Deutsche Bank,

16

Drexel Hamilton, Goldman, J.P. Morgan, KeyBanc, Lazard, Macquarie, Merrill

17

Lynch, Nomura, Piper Jaffray, Samuel A. Ramirez, Telsey, and Wells Fargo are

18

collectively referred to hereinafter as the Underwriter Defendants. The Underwriter

19

Defendants assisted in the preparation and dissemination of the IPO, December SPO

20

and/or April SPO Offering Materials (as defined above at 29).

21
22
23
24

Date
December 1, 2009
April 18, 2013
December 17, 2013
April 9, 2014
December 31, 2015

Blackstones Ownership of SeaWorld Throughout


Class Period
100%
63.3%
42.8%
25%
22.2%

25
26
27

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E.

G. Relevant Non-Parties

42.

57. Certain allegations herein are based on information provided by

confidential witnesses (CWs) who are former employees of SeaWorld interviewed

by Plaintiffs representatives.
43.

58. CW-1 worked for SeaWorld for over three years prior to the start of

the Class Period through mid-2014, most recently as a Social Media Manager at the

Companys corporate headquarters in Orlando, Florida. Starting in the first half of

2013, CW-1 reported to the Director of Social Media, who reported to Chief Marketing

Officer Peter Frey. In her24 position, CW-1 was involved in managing social media for

10

the Company as a whole, which included monitoring and tracking commentary on the

11

internet, on Twitter and within various electronic forums concerning SeaWorld. Each

12

of SeaWorlds eleven parks had its own Facebook and Twitter accounts, as well as

13

social media personnel managing those accounts. As a Social Media Manager, CW-1

14

was responsible for, among other things, strategizing with the parks about how to

15

convey information to the public through social media. During the Class Period, CW-1

16

was among those responsible for monitoring Blackfish-related commentary and

17

backlash on the internet and Twitter. In one aspect of this work, CW-1 participated in

18

a so-called war room in which she and other marketing and media employees

19

worked on various digital media for the Companys website in response to Blackfish.

20

CW-1 also worked with representatives from 42West, the public relations company

21

SeaWorld hired in early 2013 to handle the Companys media campaign in response to

22

Blackfish.

23

44.

24

59. CW-2 worked as a Director in marketing and advertisement at

SeaWorlds-branded San Antonio park for over three years prior to the start of the

25
24

26
27

To preserve anonymity, all CWs are referred to herein using feminine pronouns.
27
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Class Period through early 2014. CW-2 reported to the Vice President of Marketing

for San Antonio, who, in turn, reported to the General Manager of the San Antonio

park (GM), and also to the SeaWorld Corporate Marketing leadership in Orlando,

Florida.

relationships and promotions, including with companies such as McDonalds,

Coca-Cola and Southwest Airlines. As a part of her job function, CW-2 received

weekly attendance reports showing actual attendance and target attendance numbers

compiled at SeaWorlds corporate headquarters, and participated in conference calls

and/or meetings in which these attendance reports were reviewed and discussed. Other

10

attendees at these regular meetings included the San Antonio parks GM, Vice

11

President of Marketing and Vice President of Finance.

12

45.

CW-2s responsibilities entailed working on retail and sponsorship

60. CW-3 worked for SeaWorld at itss-branded San Diego park for over

13

three years prior to the start of the Class Period through late 2014, most recently as a

14

Supervisor. In this role, CW-3 managed various park personnel, including with respect

15

to salary matters, hiring, retention and scheduling. CW-3 explained that SeaWorld

16

closely managed its staffing based on actual daily attendance figures. In her role as

17

Supervisor, CW-3 also received a daily e-mail concerning attendance figures. By noon

18

each day, if actual attendance was too far below the attendance budgeted for that

19

partyparticular day, CW-3 would receive instructions to send a certain number of her

20

supervisees home for the day. In at least 2013 and 2014, CW-3 also had access to

21

SeaWorlds annual Daily Attendance Budget, via a shared drive on SeaWorlds

22

computer network. The Daily Attendance Budget was a budgeting and forecasting tool

23

developed compiled by SeaWorlds corporate finance department that, among other

24

things, estimated attendance for each day at the park, covering 365 days of the year.

25

According to CW-3, the finance department used weather patterns, school and holiday

26
27

28
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schedules, information about other SeaWorld parks and historical data to make the

daily estimates.

determine, among other things, needs related to staffing, the purchasing of goods and

supplies, food and beverage and ride operations. In or around September each year, a

member of the finance department would advise supervisors and managers that the

report was available.

(ECMECMs), which she believed were held at all SeaWorld parks to discuss, among

other things, Blackfish.

46.

The forecasted attendance was then used by management to

CW-3 also attended Employee Communication Meetings

61. CW-4 worked for SeaWorld at itss-branded San Diego park for over

10

three years prior to the start of the Class Period through late 2014, most recently as a

11

Director in food and beverage services. In this role, CW-4 was responsible for food

12

and beverage service at SeaWorld San Diego, which included managing

13

approximately 1,000 or more employees. CW-34 explained that SeaWorld closely

14

managed its staffing and food and beverage needs based on actual daily attendance

15

figures. In her role, CW-4 was privy to daily, weekly and yearly attendance reports,

16

including the Daily Attendance Budget which CW-4 added was developed by the

17

Companys Business Analysis Department and typically released in the fourth quarter

18

of the previous year. According to CW-4, the Daily Attendance Budget was the heart

19

of the operation at SeaWorld because attendance forecasting was the primary driver

20

of all business planning and management at SeaWorld parks. CW-4 further stated that

21

the Daily Attendance Budget included attendance forecasts for all 365 days of the year

22

and could be adjusted on a weekly basis if needed. CW-4 received daily alerts via her

23

smart phone and email regarding attendance so that she could adjust her departments

24

budget and staffing based on the days actual attendance levels. CW-4 recalled it was a

25
26
27

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regularly occurring, common practice to budget down by releasing staff early

during 2013 and 2014 based on low attendance.

47.

CW-5 worked for SeaWorld for over five years, first as a Financial

Analyst supporting the Marketing division for SeaWorlds Orlando parks (which

included SeaWorld, Discovery Cove and Aquatica), then as a Corporate Analyst in the

finance division at the Companys Orlando headquarters. CW-5 worked in the former

position for over three years prior to the start of the Class Period until December 2014.

In her role as a Financial Analyst at SeaWorld Orlando, CW-5 was responsible for

budgeting, forecasts, data analysis and analytics for the marketing department. CW-5

10

compiled park-level data for the Orlando parks that was reported to corporate

11

headquarters in weekly, monthly and quarterly reports. The reports compared actual

12

attendance to budgeted attendance, forecasted attendance, which was updated

13

monthly, and the prior years attendance. CW-5 explained that SeaWorld used a

14

homegrown proprietary database called ParkWare to track attendance and data in

15

real time on each visitor that entered the park. As a Financial Analyst for the Orlando

16

parks, CW-5 primarily had exposure to attendance projections for those parks. As part

17

of her reporting duties, CW-5 also analyzed which ticket types were not selling and the

18

residence of visitors. CW-5 also had responsibility for data analysis for the contact

19

center when she was at the Orlando parks. She explained that the call center was rich

20

with data and that every second of every call was recorded in the database. Although

21

CW-5 was only responsible for compiling data on the length and volume of calls and

22

wait times for incoming calls, CW-5 did discuss Blackfish as a likely reason for the

23

decreased attendance at the three SeaWorld-branded parks with her colleagues. CW-5

24

stated that she knew that SeaWorlds Chief Financial Officer, Defendant Heaney,

25

received the information within her reports in some form.

26
27

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48.

Sarah Fischbeck joined SeaWorlds-branded San Diego park in 2007 as a

water quality diver. During her six years with SeaWorld, Ms. Fischbeck worked

across SeaWorlds departments, regularly diving with the various animals and

performing maintenance on SeaWorlds different exhibits. Ms. Fischbeck voluntarily

left SeaWorld in December of 2013, a decision she reportedly made due to poor

treatment as an employee and SeaWorlds treatment of its animals. In a two-part

interview reported by The Dodo entitled Ex-SeaWorld Employee: If You Speak Out

Against It, Youre Fired, Ms. Fischbeck publicly described SeaWorlds corporate

culture as being obsessed with secrecy, explaining that employees who saw anything

10

go wrong at SeaWorld parks were put under gag orders. In particular, the articles

11

report that SeaWorlds secretive management policies were perhaps best highlighted

12

during the release of Blackfish in July 2013[.] Describing SeaWorlds instructions

13

to its employees regarding Blackfish, Ms. Fischbeck revealed that SeaWorld actually

14

had a collective meeting before it came out telling us to say it was fake, and that

15

SeaWorld was feeding us lines[.] Ms. Fischbeck further disclosed that employees

16

were instructed to dissuade family and friends from seeing the film and that

17

SeaWorlds entire response to Blackfish was extremely hush-hush.

18
19
20
21
22
23
24
25

49.
IV.

OVERVIEW
A.

SeaWorlds April 2013 IPO And Two Secondary Public Offerings


During The Class Period

50.

62. SeaWorld is a theme park and entertainment company that owns and

operates eleven theme parks that are grouped in key markets across the U.S., including
water show parks that house or otherwise feature killer whales located in Orlando,
Florida, San Diego, California, and San Antonio, Texas, and Busch Gardens theme

26
27

31
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parks in Tampa, Florida, and Williamsburg, Virginia. The three SeaWorld-branded

parks are the flagship parks of the SeaWorld brand. SeaWorld owns or licenses a large

portfolio of globally recognized brands such as, including SeaWorld, and Shamu (the

name of the Companys first performing orca), and Busch Gardens. .

51.

63. Until April 2013, SeaWorld was 100% privately held. In particular,

SeaWorld was privately owned by Busch Entertainment Corp. until December 2009,

when it was sold in full to Blackstone and renamed SeaWorld Entertainment. In April

2013, Blackstone took SeaWorld public. On or about April 24, 2013, the Company

completed the IPO of its common stock at a price of $27.00 per share. In the IPO, the

10

Company issued and sold 10,000,000 shares of common stock, and certain selling

11

stockholders offered and sold 19,900,000 shares of common stock (owned by

12

Blackstone), including 3,900,000 shares of common stock pursuant to the exercise in

13

full of the underwriters option to purchase additional shares. In connection with the

14

IPO, the Company filed with the SEC the IPO Offering Materials, which were signed

15

by the following Individual Defendants and underwritten by the following Underwriter

16

Defendants:

17
18

Signatories to the IPO Offering


Materials

Underwriters

19

Atchison

Barclays

20

Baratta

Blackstone Capital

21

DAlessandro

Citigroup

22

Heaney

Drexel Hamilton

23

McEvoy

Goldman

24

McHale

J.P. Morgan

25

Swanson

KeyBanc

26
27

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Signatories to the IPO Offering


Materials

Underwriters

Wallace

Lazard

Macquarie

Merrill Lynch

Nomura

Samuel A. Ramirez

Wells Fargo

8
9

52.

64. On December 17, 2013, the Company completed the December SPO,

10

a secondary offering of 18,000,000 shares of common stock (all of which were owned

11

by Blackstone) at a price of $30.00 per share. In connection with the December SPO,

12

the Company filed with the SEC the December SPO Offering Materials, which were

13

signed by the following Individual Defendants and underwritten by the following

14

Underwriter Defendants:

15
16

Signatories to the December SPO


Offering Materials

Underwriters

17

Atchison

Blackstone Capital

18

Baratta

Citigroup

19

DAlessandro

Deutsche Bank

20

Heaney

Drexel Hamilton

McEvoy

Goldman

McHale

J.P. Morgan

Swanson

KeyBanc

Wallace

Lazard

21
22
23
24
25

Macquarie

26
27

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Signatories to the December SPO


Offering Materials

Underwriters

Merrill Lynch

Piper Jaffray

Samuel A. Ramirez

Telsey

Wells Fargo

7
8

53.

65. On April 9, 2014, the Company completed the April APOSPO, a

secondary offering of 17,250,000 shares of common stock (15,000,000 of which were

10

owned by Blackstone and the other 2,250,000 of which were sold pursuant to the

11

exercise in full of the underwriters option to purchase additional shares) at a price of

12

$30.00 per share. In connection with the April SPO, the Company filed with the SEC

13

the April SPO Offering Materials, which were signed by the following Individual

14

Defendants and underwritten by the following Underwriter Defendants:

15
16

Signatories to the April SPO


Offering Materials

Underwriters

17

Atchison

Barclays

18

Baratta

Blackstone Capital

19

DAlessandro

Citigroup

20

Heaney

Drexel Hamilton

21

McEvoy

Goldman

McHale

J.P. Morgan

Swanson

KeyBanc

Thomas

Lazard

Wallace

Macquarie

22
23
24
25
26
27

34
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Signatories to the April SPO


Offering Materials

Underwriters

Merrill Lynch

Nomura

Samuel A. Ramirez

Wells Fargo

6
7

B.

SeaWorlds Operations

54.

66. SeaWorlds brand and marketing efforts focus on the Companys

8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25

unique animal-based attractions, particularly at its three branded parks. According to


public filings, across its eleven parks, SeaWorld maintains one of the worlds largest
zoological collections, including ninety-three (93) animal habitats with approximately
86,000 animals, including 8,000 marine and terrestrial animals and 78,000 fish. These
parks feature, among other things, orca, sea lion and dolphin shows, as well as
zoological displays featuring various other marine animals. The Companys parks also
feature roller coasters and other mechanical thrill rides.
55.

67. The three SeaWorld-branded parks main attraction isfor over fifty

years has been its shows featuring orcas (i.e., killer whales), which until March
2016the Company captures, breedshas captured, bred and trainstrained to perform.
Shamu the name of the Companys first orca and SeaWorlds globally
recognized and trademarked name for its killer whale shows is a brand
synonymous with SeaWorld for much of the parks 50-year history, according to The
Voice of San Diego. SeaWorlds logo features a killer whales dorsal fin. At the time
of the IPO, SeaWorld-branded parks housed twenty-nine (29) killer whales. Currently,
SeaWorld houses twenty-four (24) orcas in three parks eleven (11) at SeaWorld San

26
27

35
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Diego, seven (7) at SeaWorld Orlando, and six (6) at SeaWorld San Antonio. Five

other orcas are on breeding loan to various establishments.

56.

68. To be sure, SeaWorlds killer whale shows representhave represented

a key point of differentiation from other theme parks, and are a main driver of the

Companys ability to attract customers to its flagship parks in Orlando and San Diego,

as reported by The Voice of San Diego. As noted in the Companys IPO Offering

Materials, each SeaWorld theme park showcases killer whales in specially designed

amphitheaters. Since 1964, hundreds of millions of people have attended SeaWorlds

signature Shamu Shows, which emphasize the killer whales impressive

10

intelligence, massive bodies, and complex social interactions with humans. Before the

11

Occupational Safety and Health Administration (OSHA) banned human trainers

12

from working in the water with captive killer whales in 2010, the signature climax of

13

these shows was the iconic rocket hop maneuver in which the killer whale propelled

14

a trainer out of the water.

15

57.

69. Orcas and orca shows thus constitute the core of the SeaWorld brand.

16

Dave Goodman, former vice president and executive producer of entertainment at

17

SeaWorlds Orlando park explained to The Voice of San Diego that [t]ying the human

18

experience to the animal one is the vital thrust behind the Shamu shows and the park

19

itself and analogized that, [r]eplacing Shamu to Seaworld is like getting rid of

20

Mickey to Disney. As Atchison told Bloomberg in November 2014: Our killer

21

whales, our killer whale program, and all of our animals are emblematic of the

22

whole brand.

23

58.

Despite SeaWorlds long reliance on its orca shows as its primary and

24

signature attraction, on March 17, 2016, the Company announced that it was

25

discontinuing its orca breeding program and its trademarked orca trick shows.

26
27

36
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SeaWorld did so under enormous public pressure and multi-year attendance declines

after Blackfish spurred public backlash against the Companys treatment of its orcas.

Indeed, SeaWorlds CEO acknowledged that SeaWorlds orca showsonce its selling

pointwas now driving consumers away. A March 24, 2016 Forbes article quotes

Manby, stating: [SeaWorld] built the brand around Shamu many years ago and

made people fall in love with killer whales . . . but now the paradox is that its one of

the leading reasons people are uncomfortable with SeaWorld. In an op-ed Manby

authored to announce the decision, published in the Los Angeles Times, Manby

attributed SeaWorlds announcement to an attitudinal change that we helped to

10

create. And as the Los Angeles Times further reported on March 18, 2016, [t]hough

11

Manby made no reference to Blackfish in his op-ed, the film was largely

12

responsible for that attitudinal change.

13
14

i.
59.

The Amusement And Theme Park Industry

70. The amusement and theme park industry is highly concentrated and

15

dominated by five major players: (i) SeaWorld; (ii) Disney; (iii) Universal; (iv) Cedar

16

Fair LP; and (v) Six Flags, Inc. According to IBISWorld a group comprised of

17

industry-focused analysts, strategists, and researchers that provide comprehensive

18

information on, among other things, the amusement park industry in the U.S. these

19

five companies collectively account for approximately 86.6% of the total U.S. theme

20

park industry revenue. Notably, each year, IBISWorld issues the IBISWorld Industry

21

Report Amusement Parks in the US (IBISWorld Report), and SeaWorld has

22

referenced the IBISWorld Report in its public statements and filings.

23

60.

71. Each year, the Themed Entertainment Association (TEA) publishes

24

a Theme and Museum Index Global Attractions Attendance Report (2013 TEA

25

Report), in which it identifies the top theme parks and water parks, including

26
27

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SeaWorld, and reports their performance for the calendar year. TEA is a prominent

group dedicated to providing consumers with information about, among other things,

theme parks like SeaWorld. SeaWorld also references and explicitly relies upon TEA

data in its public statements and filings. Indeed, the TEA Reports represent the

standard within the theme park industryas both the industry (including SeaWorld)

and the market relies upon data from the TEA Reports in analyzing attendance within

the industry. One key piece of information the TEA Reports provide, which theme

park operators including SeaWorld typically do not provide to investors, is attendance

data for individual theme parks.

10

61.

72. In the Companys 2013 Form 10-K, SeaWorld identified Disney and

11

Universal as its principal direct competitors.

12

Universal operate theme parks in Orlando, Florida and popular tourist destinations in

13

southernSouthern California. In Orlando, Disney operates Magic Kingdom, Epcot,

14

Hollywood Studios, Animal Kingdom, Blizzard Beach and Typhoon Lagoon, while

15

Universal operates Universal Studios Florida and Island of Adventure.

16

southernSouthern California, Disney operates Disneyland and California Adventures,

17

while Universal operates Universal Studios Hollywood.

18

industry, Disney, Universal and SeaWorld are often referred to as the Big Three.

19

Setting it apart from these competitors, SeaWorld touts its highly differentiated

20

products, i.e., its orcas and water shows, as providing a complementary experience

21

to those offered by fantasy-themed Disney and Universal parks.

22

62.

Like SeaWorld, both Disney and

In

Within the theme park

73. According to IBISWorld, families with children aged ten (10) to

23

nineteen (19) make up the primary consumer market for the theme park industry. As of

24

August 2014, teenagers and children younger than eighteen (18) accounted for

25

approximately 25.6% of all U.S. theme park attendees. As noted by IBISWorld, due to

26
27

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the limited disposable income of this group, consumers between ages thirty-five (35)

and fifty-four (54) years old typically accompany children to parks, and

accountsaccount for approximately 21.6% of the market. In short, younger consumers

typically drive a significant portion of demand and attendance for the industry as a

whole.

63.

74. Consistent with this observation, SeaWorld noted in its 2013 Form

10-K that families comprised 54% of our attendance with an average party size of 3.8

people. Accordingly, SeaWorlds ability to ensure that its products are and remain

appealing to this younger demographic are essential to its success.

10
11

ii.
64.

Attendance Drives SeaWorlds Revenues

75. Amusement and theme parks derive the majority of their revenues

12

from ticket sales. Attendance, in turn, allows for in-park spending. SeaWorld is no

13

exception. Throughout the Class Period, Defendants identified attendance as a key

14

proxy for analyzing the success and stability of the Companys business operations.

15

Indeed, in its 2013 Form 10-K the Company stated, [w]e generate most of our revenue

16

from selling admission to our theme parks, and disclosed that admissions accounted

17

for nearly two-thirds (approximately 63%) of its total 2013 revenue.

18

65.

76. Likewise, SeaWorlds quarterly filings with the SEC on Form 10-Q

19

each include attendance as a key business metric evaluated by management, and

20

represent that [i]ncreased attendance drives increased admissions revenue to our

21

theme parks as well as total in-park spending. As SeaWorld explained in a recent

22

proceeding before a federal court in Florida:

23
24
25
26
27

Your Honor, Sea World keeps records of every guest who enters their
parks. Those records include drivers license numbers, credit card
numbers, addresses, information on each and every visit that the guest
makes to the park, the dates of those visits, what the guest purchased at
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the park, names of minor children who purchase passes, et cetera. Sea
World also keeps records of each telephone conversation between a
guest and Sea World, and keeps notes in a computerized data system of
those telephone conversations. These records, as you might imagine,
Your Honor, are very voluminous.5

1
2
3
4
5

66.

Moreover, CW-5 confirmed that SeaWorld very closely monitored its

attendance through various internal home-grown systems, including ParkWare, a

real-time recording system that tracked attendance and various data regarding each

visitor that entered a SeaWorld park.

SeaWorld to gather data regarding each visitor to SeaWorld parks, as ParkWare

10

recorded visitor data with a bar code for each park visitor that clicked through a

11

SeaWorld turnstile. According to CW-5, SeaWorld maintains numerous databases

12

beyond just ParkWare, and internal reports could be generated from each of these

13

databases. Further, CW-5 confirmed that the universe of data collected from all of

14

these databases could be emailed, imported into Excel, and analyzed by business

15

analysts through one of SeaWorlds internal programs called Business Objects. The

16

breadth of the attendance-related records that SeaWorld keeps demonstrates the

17

importance that SeaWorld attributes to this key business metric.

18

67.

CW-5 explained that ParkWare enabled

77. SeaWorlds growth strategy, as discussed in the materials SeaWorld

19

filed in conjunction with the IPO (IPO Offering Materials), revolves around the

20

Companys ability to increas[e] [the Companys] existing theme park revenues

21

through strategies designed to drive higher attendance and increase in-park per capita

22

23
24
25
26
27

Transcript of Preliminary Pretrial Conference, Jason Herman, et al. v. Sea World


Parks & Entertainment, Inc., No. 8:14-cv-03028-MSS-JSS (M.D. Fla. Mar. 5, 2015),
at 21:11-22. Notably, in the same case, a SeaWorld corporate manager attested that
[t]here are more than eight million individual notes in [SeaWorlds season pass]
database since December 1, 2008. Declaration of Scott Trien (Dkt. No. 99-2),
Herman, No. 8:14-cv-03028-MSS-JSS, at 8.
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spending. Further, the main purpose of SeaWorlds marketing efforts is to increase

attendance. As SeaWorld stated in its 2013 Form 10-K, [o]ur marketing and sales

efforts are focused on generating profitable attendance. The Company further

acknowledged in its 2013 Form 10-K that reductions in attendance can materially

adversely affect [SeaWorlds] business, financial condition and results of operations.

68.

78. The Companys Forms 10-Q likewise represent within a section

entitled Principal Factors Affecting Our Results of Operations that the Companys

revenues are driven primarily by attendance in our theme parks and the level of per

capita spending for admission to the theme parks and per capita spending inside the

10

theme parks for culinary, merchandise and other in-park experiences.

11

maintaining and driving attendance levels is a fundamental concern of SeaWorlds and

12

critical to its revenues and results of operations.

13

69.

Thus,

79. In order to generate attendance, companies operating amusement

14

parks (or operators) typically offer various ticketing options, ranging from

15

traditional single-day or multi-day admission tickets granting entrance to a single park

16

to package deals (or bundles) that entail admission to several different parks,

17

including parks run by different companies. Companies operating multiple parks in a

18

particular geographic location generally offer consumers the ability to purchase

19

entrance to more than one of their parks for a discounted price.

20

70.

80. Moreover, in locations that are home to multiple parks operated by

21

various operators in the industry, the ability to offer joint and single ticketing

22

arrangements with discounts in cooperation with other theme parks, such as a

23

multi-park pass, can further boost ticket sales and attendance. For example, Orlando,

24

Florida is home to seven of the largest amusement parks in the U.S. As IBIS explained

25

in the Companys 2014 industry report, [i]industryndustry players have found that

26
27

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there are synergies and promotions and other advantages in having a number of major

operators located in the same area.

71.

81. TEA explained that increased tourism within a particular destination

like Orlando tends to drive increased attendance at all theme parks operating within

that market. Tourists who choose to vacation near theme park venues prefer to have a

range of options, and will vacation in places that offer multiple attractions in close and

convenient proximity.

72.

82. These principles apply to SeaWorld, which represented in its public

filings during the Class Period that it benefits from the significant capital investments

10

made in developing the tourism industry in the Orlando area, and that the high

11

concentration of theme parks operated by several companies is beneficial to

12

SeaWorlds operations, both in Orlando and in San Diego. Consistent with these

13

observations, SeaWorld reported in its 2013 Form 10-K that approximately 55% and

14

21% (or 76% combined) of its revenues in 2013 were generated in the States of Florida

15

and California, respectively.

16

73.

83. The Company further emphasized this point in its 2013 Form 10-K,

17

stating, [w]e also participate in joint programs that are designed to provide visitors to

18

Florida and Southern California with options, flexibility and value in creating their

19

vacation itineraries. For example, we have partnered with several theme parks in

20

Orlando to create the Orlando FlexTicket.We also created the 2-Park FlexTicket [in

21

San Diego] in conjunction with Universal Studios, which allows guests to purchase a

22

ticket providing access to SeaWorld San Diego and Universal Studios Hollywood.

23

74.

84. Because attending a park is usually an all-day (and sometimes

24

multi-day) event for visitors, industry operators also generate significant revenues

25

from the sales of food and beverage. In 2013, food, merchandise and other revenue

26
27

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accounted for approximately 37% of SeaWorlds total revenue, according to the

Companys 2013 Form 10-K. In addition, parks generate revenue from merchandise

sales, which IBISWorld estimated would account for approximately 16% of overall

industry revenue. The remainder of theme park revenues is typically derived from

sponsorships, licensing and other fees. Of course, a theme park operators ability to

generate revenues through the sale of food, beverages or merchandise depends

entirely, as a threshold matter, upon attendance.

75.

85. Given how critical attendance is to a theme parks bottom line, theme

park companies are focused on, and regularly, monitor, track, and account for, factors

10

that may depress attendance. Such factors, as discussed below, may include adverse

11

weather conditions, annual holiday and school schedules (since school-age children

12

are a critical target demographic), pricing strategies and, as mentioned above,

13

location-related issues. Companies typically list these factors as potential risks to

14

performance within public financial filings.

15

76.

Moreover, because attendance statistics are critical to a theme parks

16

bottom line, attendance figures are incredibly material to an investors decision to

17

invest in a theme park company, like SeaWorld. As the San Antonio Express-News

18

recently explained, however, SeaWorld doesnt usually provide information on

19

attendance at specific parks in its SEC filings[,] and on conference calls, executives

20

decline[] to offer more specific figures[,] noting that Peter Crage, SeaWorlds current

21

CFO, stated We dont break that out. Therefore, to understand the trends of this

22

critical metric, investors must rely on the information available to the marketi.e., the

23

TEA Reports expressly relied upon by SeaWorld and analyststhat never provide the

24

complete breakdown of attendance at all of SeaWorlds parks, or park-level attendance

25

data on anything but an annual basis, and only for the largest theme parks. Beyond

26
27

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that, investors are forced to rely upon only one source for complete information about

attendance at SeaWorld parks: the Companywho investors trust, and the securities

laws require, to tell the complete truth about such a critical business metric as

attendance.

C.

Blackfish Premieres At The Sundance Film Festival And Seizes


Public Attention

77.

86. On January 19, 2013, just months before Blackstone took SeaWorld

6
7
8

public in the IPO, Gabriela Cowperthwaites documentary Blackfish premiered at the

world-renowned Sundance Film Festival in Park City, Utah. The documentary tells

10

the disturbing story of Tilikum, a 12,000-pound bull orca implicated in the deaths of

11

three people.

12

well-publicized 2010 mutilation and killing of senior trainer Dawn Brancheau, which

13

took place at SeaWorld Orlando.

14

78.

Cowperthwaite began work on Blackfish following Tilikums

87. More generally, Blackfish is an indictment of SeaWorlds core brand

15

and killer whale-as-entertainment business. The film chronicles the apparent cruelty of

16

baby orca capture methods, the dangers associated with the close human-killer whale

17

contact featured at SeaWorlds most popular shows, and the strains, both physical and

18

psychological, of captivity on the killer whales held by SeaWorld. Featuring graphic

19

images of trainers being mauled and whales being bitten or raked by fellow whales

20

in captivity, as well as interviews of former SeaWorld trainers, SeaWorld spectators,

21

and other experts such as OSHA employees and scientists, Blackfish makes the case

22

that SeaWorlds business of keeping killer whales in captivity for the purpose of

23

human entertainment and profit is cruel, dangerous, and immoral. In addition to its

24

anti-captivity message, Blackfish suggests that in order to protect its brand and most

25

popular, profitable and iconic attraction its killer whale shows SeaWorld cravenly

26
27

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covered up previous dangerous and fatal incidents involving Tilikum, blaming whale

trainer error for the tragic incidents. An early review noted that the film makes

SeaWorlds entire operation look criminal.

79.

In particular, the film highlighted SeaWorlds willingness to disregard

and ignore its own internal reports in order to protect its core brand. Specifically,

Blackfish focused on SeaWorlds conduct in the OSHA proceedings that resulted in a

30-page opinion issued by Administrative Law Judge (ALJ), Ken S. Welch. See

Secretary of Labor v. SeaWorld of Florida, LLC, OSHRC Dkt. No. 10-1705, 2012

OSAHRC LEXIS 40 (O.S.H.R.C.A.L.J. June 11, 2012). Therein, the ALJ found that:

10

(i) SeaWorld proffered an expert opinion that was speculative and ha[d] no basis in

11

fact[,] id. at *80; (ii) SeaWorld had adopted a corporate line that the trainer is always

12

at fault for the killer whales undesirable behavior. In this closed system, any injuries

13

sustained by a trainer will always be traceable to human error. It is not the operant

14

conditioning program that is inadequate; it is the performance of the trainer that is

15

flawed[,] id. at *70-71; and (iii) despite a plethora of reports by management

16

personnel who instituted corporate-wide protocols and safety procedures that were

17

circulated among the SeaWorld parks over a fifteen-year span, SeaWorld insist[ed]

18

it did not recognize the hazard posed by working in close contact with killer

19

whalesa position the ALJ found was implausible because [n]o reasonable

20

person reading these comments would conclude that SeaWorld was unaware that

21

working in close contact with killer whales during performances creates a hazard for its

22

trainers. Id. at *65-66.

23

80.

88. While the film amounted to a direct attack onMoreover, the film

24

charged SeaWorld with having coerced its employees into telling bold-faced lies on

25

the witness stand in the OSHA proceeding, specifically pointing to the testimony from

26
27

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SeaWorlds curator, Kelly F. Clark, that SeaWorld had no affiliation with a park called

Loro Parque in Tenerife, Spain, to which SeaWorld had leased five killer whales.

Directly contradicting Ms. Clarks testimony, the ALJ found the SeaWorld and Loro

Parque parks are intertwined as [m]anagement personnel at the parks are in constant

communication with each other[,] despite SeaWorlds attempt[] to distance itself

from the SeaWorld parks and from Loro Parque, and to minimize evidence that

working closely with killer whales is a recognized hazard, id. at *36-37. Ultimately,

as the film showed, the ALJ assessed $12,000 in penalties against SeaWorld for its

serious and willful violations of the law. Id. at *96. These findings by the ALJ

10

were affirmed by the U.S. Court of Appeals for the District of Columbia Circuit.

11

SeaWorld of Florida, LLC v. Perez, 748 F.3d 1202 (D.C. Cir. 2014). In short,

12

Blackfish exposed SeaWorlds willingness to consciously disregard internal reports

13

that jeopardized its core operations, as demonstrated by the OSHA proceedings. And

14

while the film directly attacked SeaWorlds brand and business operations, the

15

Companys response throughout the Class Period reflected a denial of, and inability to

16

deal with, the impact of Blackfish.

17

81.

89. Following the critically acclaimed screening of the film at Sundance,

18

on January 22, 2013, as was widely reported, CNN Films and Magnolia Pictures

19

acquired the rights to Blackfish and immediately announced plans to screen the film on

20

a broad public platform beginning in the summer of 2013.

21

82.

90. The film reached increasingly broad swathes of the public throughout

22

2013. On July 19, 2013, Blackfish was released in theaters in New York, New York,

23

Los Angeles, California, and Toronto, Canada, among other places. At its widest

24

release, the documentary was shown in approximately ninety-nine (99) theaters for a

25

total of fourteen (14) weeks. Also in July 2013, the film was made available to British

26
27

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customers of Netflix, the leading online video streaming and mail-order service. The

next month, on August 26, 2013, Blackfish was released on DVD and Blu-ray Disc in

the United Kingdom. In September and October of 2013, the film premiered in

Germany, Greece, Iceland, Spain and other international locations.

83.

91. The documentary was then broadcast to tens of millions more people

on CNN during a highly promoted screening on October 24, 2013. CNN reported that,

according to Nielsen ratings, the Blackfish premiere topped cable news viewership that

evening. After the broadcast, CNN aired an Anderson Cooper special with, among

others, Gabriela Cowperthwaite. This was followed by a special edition of Crossfire

10

with Blackfish associate producer Tim Zimmermann debating Grey Stafford, a

11

conservationist, zoologist, and member of the International Marine Animal Trainers

12

Association. CNN re-aired the film numerous times in the days and weeks that

13

followed.

14

84.

92. Blackfish was also released on DVD, Blu-ray Disc and iTunes in the

15

U.S. on November 12, 2013. The BBC aired the film in the United Kingdom on

16

November 21, 2013.

17

85.

93. By December 2013, Blackfish was made available on Netflix in the

18

U.S. At the time, Netflix maintained approximately thirty-one million U.S. domestic

19

subscribers.

20

86.

94. On January 22, 2014, Cowperthwaite openly challenged SeaWorld to

21

debate the issues raised by the film in a public forum. Cowperthwaite stated:

22

We challenge SeaWorld to debate these issues with our teams in a


public forum, which we will be happy to arrange. Throughout the
production and theatrical release of Blackfish, SeaWorld has refused to
directly engage with the film or its points in any public way, despite
repeated invitations. Instead of releasing more PR spin, written
statements and online critiques (which often allow no comments), we

23
24
25
26
27

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1
2
3
4
5
6
7
8

encourage SeaWorlds leaders to step forward and address these issues


openly and honestly in public debate. Let the public hear both sides of
the argument (as we have always desired) and draw their own
conclusions.
87.

attempted to downplay Blackfish throughout the Class Period, and brazenly


denieddenying that it was having any impact on the Companys operations and
attendance.
D.

Defendants Mislead Investors Concerning The Impact Of Blackfish


On The Companys Operations And Attendance
i.

10
11
12

95. SeaWorld declined to debate Cowperthwaite directly and continually

96.

Defendants Repeatedly Deny That The Stark Attendance


Decline At SeaWorlds Parks Was Caused, To Any Degree, By
Blackfish

As set forth above, SeaWorlds financial health is directly tied to its

13

ability to attract and grow attendance at its parks. Attendance at SeaWorlds parks

14

declined each quarter during the Class Period following the premiere of Blackfish, yet

15

Defendants repeatedly assured investors that Blackfish had not contributed, at all, to

16

these drastic declines, and was not impacting SeaWorlds operations in any way.

17

Rather, Defendants attributed the entire decline in attendance to a combination of three

18

factors: (i) adverse weather conditions; (ii) holiday and school schedules; and/or (iii)

19

SeaWorlds pricing strategies.

20

88.

97. As a result of Blackfish, by the first daytime of the Class Period, April

21

18, 2013 when the Company filed the IPO Offering Materials Companys April

22

IPO, SeaWorld had become a public relations target for PETA, other advocacy groups

23

and prominent celebrities across the nation. Given that CNN and Magnolia Pictures

24

planned for wide release of the film, the Blackfish effect, already significant, was

25

primed to intensify. Recognizing this, prior to the IPO, SeaWorld already had taken a

26
27

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number of steps that indicate SeaWorlds notice and internal understanding of the

Blackfish effect on its core business. As disclosed by Ms. Fischbeck, SeaWorld

actually had a collective meeting before [Blackfish] came out telling [SeaWorld

employees] to say it was fake[.] According to Ms. Fischbeck, SeaWorld was feeding

[its employees] lines, and instructing SeaWorld employees to dissuade family and

friends from seeing the film. And, externally, SeaWorld had begun a nationwide

campaign to mitigate the harmful impact of Blackfish on the publics perception of the

Company.

89.

98. Despite the fact that it was battling the Blackfish effect in a nationwide

10

public relations campaign, rather than inform the public within the IPO Offering

11

Materials that Blackfish was presently harming SeaWorlds reputation, reduc[ing]

12

attendance and negatively impact[ing] [SeaWorlds] business, financial condition and

13

results of operations, the Company disclosed only that Blackfish may have a

14

negative effect on attendance and other key metrics at some point in the future.

15

Notably, SeaWorlds draft IPO Offering Materials, which the Company submitted to

16

the SEC on December 27, 2012, prior to the release of Blackfish, made no mention of

17

any of the events underlying the film, including the Brancheau death, the federal

18

governments response or the media coverage of the incident. After the Companys

19

proposed material risk disclosures were rejected by the SEC as brief and general in

20

nature and subsequent to Blackfishs screening at Sundance SeaWorld revised this

21

language on or around February 27, 2013 to include the aforementioned purportedly

22

sufficient disclosure. According to CW-4, following the showing of Blackfish in

23

January 2013, attendance at SeaWorld San Diego noticeably dipped.

24
25

99.

After SeaWorld reported its 1Q13 results on May 23, 2013, Defendants

repeated these same purported warnings, again failing to acknowledge the

26
27

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then-existing drag caused by Blackfish on the Companys attendance and revenues.

This same warningThis same equivocal language was repeated in certain of

SeaWorlds quarterly, annual and offering-related SEC filings prior to and throughout

the Class Period.

90.

100. Meanwhile, SeaWorld continued to lose customers. On August 13,

2013, Defendants reported SeaWorlds 2Q13 financial results. Among other things,

Defendants reported a 9.59% decline in attendance for the second quarter, representing

a decrease of approximately 600,000 guests. Defendants attributed the entire drop in

attendance to three distinct factors: (i) new pricing strategies (i.e., the Companys

10

annual summer ticket price increases); (ii) adverse weather conditions; and (iii) the

11

unfavorable timing of Easter, which caused an overlap with the spring break

12

holiday period for schools. On the earnings call that same day (2Q13 Earnings

13

Call), while Atchison admitted that over the long term these weather effects tend to

14

even out, he claimed SeaWorld was impacted much more than normal during the

15

second quarter by these adverse weather conditions.

16

91.

101. Later in the 2Q13 Earnings Call, in response to an investment analyst

17

question seeking further information concerning attendance, Heaney again attributed

18

the entire decline to these same three factors, stating that each accounted for one-third

19

of the total decline.

20

obviously, wont repeat in the second half and thats one piece of attendance well pick

21

up in the third and fourth quarters.

Heaney further assured investors that [t]he Easter effect,

22
23
24
25
26
27

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D.

i.

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

Defendants Mislead Investors Concerning The Impact Of Blackfish


On The Companys Operations And Attendance

92.

Defendants Repeatedly Deny That The Stark Attendance


Decline At SeaWorlds Parks Was Caused, To Any Degree, By
Blackfish

102. Following the 2Q13 Earnings Call, financial analysts accepted

Defendants proffered explanations for the decreased 2Q13 attendance. For example,
a September 17, 2013 KeyBanc Capital Markets report dismissed concerns over
whether the Companys lagging attendance was associated with Blackfish, stating,
[w]hile building investor consternation has been evident in recent weeks following
2Q13 results and suspect publicity surrounding discounts and the potential impact of
the Blackfish documentary, we believe the operational update provided by SEAS last
week should ease some concerns [.] In our view, the vast majority of these transitory
issues have had little to no impact on the business and that is now becoming apparent in
the results. As set forth above, SeaWorlds financial health is directly tied to its
ability to attract and grow attendance at its parks. Attendance at SeaWorlds parks
declined each quarter during the Class Period following the premiere of Blackfish, yet
Defendants repeatedly assured investors that Blackfish had not contributed, at all, to
these drastic declines, and was not impacting SeaWorlds operations in any way.
Rather, Defendants attributed the entire decline in attendance to a combination of three
factors: (i) adverse weather conditions; (ii) holiday and school schedules; and/or (iii)
SeaWorlds pricing strategies.
93.

103. On the first day of the Class Period, August 29, 2013, following the

2Q13 earnings release, the Los Angeles Times questioned whether the decline in
attendance was also attributable to the ever-growing Blackfish effect. In response,
Vice President of Communications Fred Jacobs (Jacobs), speaking on behalf of the
Company, flatly denied that Blackfish or the public backlash spurred by the film was
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hurting attendance, stating that Blackfish has had no attendance impact. That same

day, Jacobs told Bloomberg that the Company can attribute no attendance impact at

all to the movie.

94.

104. Notably, one month prior, SeaWorld had dramatically intensified the

Companys public relations campaign opposing Blackfish, as Jacobs reached out to

fifty (50) major film reviewers to discredit Blackfish. The president of Magnolia

Pictures the films distributor Eamonn Bowles stated [f]rankly, Ive never seen

anything like it. The New York Times called this high profile action an unusual

pre-emptive strike and an aggressive public pushback by a corporation. NPR called

10

SeaWorlds counter-campaign one of the clumsiest, most-ill advised acts of corporate

11

crisis-management in memory. The Wire likewise reported [the] magnitude of th[e]

12

response [wa]s odd and that it was rare for a corporation to target a documentary,

13

hire a film publicist [42West] and make sure critics and journalists are informed of the

14

Companys response to a film.

15

95.

Indeed, SeaWorld was concerned enough about the negative publicity

16

resulting from Blackfish that it hired communications firm, 42West to lead a public

17

relations counter-attack. NPR called SeaWorlds counter-campaign one of the

18

clumsiest, most-ill advised acts of corporate crisis-management in memory. The

19

Wire likewise reported [the] magnitude of th[e] response [wa]s odd and that it was

20

rare for a corporation to target a documentary, hire a film publicist [42West] and

21

make sure critics and journalists are informed of the Companys response to a film.

22

96.

105. Also in or around July 2013, as the negative public perception of

23

SeaWorld continued to intensify, SeaWorld released a public statement, speaking out

24

against the film and claiming it was inaccurate:

25
26
27

Blackfish...is inaccurate and misleading and, regrettably, exploits a


tragedy.... [T]he film paints a distorted picture that withholds...key
52
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facts about SeaWorldamong them...that SeaWorld rescues,


rehabilitates and returns to the wild hundreds of wild animals every
year, and that SeaWorld commits millions of dollars annually to
conservation and scientific research.

97.

1
2

Shortly thereafter, on August 29, 2013, at least one analyst, S&P Capital

IQ, remained skeptical about Defendants story regarding the effect of Blackfish,

stating that we think SEAS confronts considerable negative public relations regarding

captivity of killer whales in a high-profile documentary and describing negative

publicity around a SeaWorld documentary as an overhang that will weigh on

[SeaWorlds] shares. Most analysts, however, took SeaWorlds word, accepting

10

Defendants bullish proffered explanations for the decreased 2Q13 attendance. For

11

example, a September 17, 2013 KeyBanc Capital Markets report dismissed concerns

12

over whether the Companys lagging attendance was associated with Blackfish,

13

stating, :

14
[w]hile building investor consternation has been evident in recent
weeks following 2Q13 results and suspect publicity surrounding
discounts and the potential impact of the Blackfish documentary, we
believe the operational update provided by SEAS last week should ease
some concerns [.] In our view, the vast majority of these transitory
issues have had little to no impact on the business and that is now
becoming apparent in the results.

15
16
17
18
19

98.

20
21
22
23
24
25
26
27

106. SeaWorld attendance kept falling.

On November 13, 2013,

Defendants reported SeaWorlds 3Q13 financial results, including a 3.6% decline in


attendance for the third quarter a decrease of 600,000 guests, and a 4.7% decline
overall for the first nine months of 2013 as compared to the same periods in the prior
year.

The decline, Defendants represented, was attributable to adverse weather

conditions in July, as well as the expected result of pricing strategies the Company
implemented in the prior quarter.
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99.

107. The following day, on November 14, 2013, Atchison stated to the

Wall Street Journal: I scratch my head if theres any notable impact from this film at

all, and I cant attribute one to it, adding [i]ronically, our attendance has improved

since the movie came out. Defendants spin efforts continued to work, as analysts

from Wells Fargo, JPMorgan and Barclays, among others, accepted the Companys

explanation for declining attendance and made no mention of the Blackfish

controversy in published reports even as the film exploded on social media in the

weeks following the CNN premiere. However, because SeaWorlds attendance

declines sustained in the third quarter were counter to trends at peers[,] S&P Capital

10

IQs November 18, 2013 Stock Report questioned whether SeaWorld was forthrightly

11

disclosing the complete truth to the market: In our opinion, the sharp drop in

12

attendance, particularly when viewed in the context of better performance from peers,

13

feeds concerns that negative publicity of the Blackfish documentary is impacting

14

visitation.

15

100. 108. On December 20, 2013, Atchison similarly rejected the notion that

16

Blackfish was in any way, shape or form, playing a part in the decline in attendance.

17

As reported by the Orlando Sentinel, he stated: As much data as we have and as much

18

as we look, I cant connect anything really between the attention that the film has

19

gotten and any effect on our business.

20

101. 109. ThatThe same day Atchison was denying any harm to the

21

Companys attendance, from Blackfish, SeaWorld responded to the film with an open

22

letter purporting to rebut it, which the company placed in full-page ads in major

23

American newspapers.

24

Advocates, was also posted to the Companys Facebook and Twitter accounts.

SeaWorlds Open Letter from SeaWorlds Animal

25
26
27

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SeaWorld also devoted an entire section of its website to the documentary, entitled

Truth About Blackfish.

102. 110. CNN called the move very interesting:

[O]ne of the things we have talked with SeaWorld about is how they
say, look, Blackfish has not had any impact whatsoever on the revenues
and on the number of people attending. But then you have to wonder,
well, why would they go to such an expense and why would they take
this out. Part of it could be because they're starting to see an impact on
a very key part of their audience

5
6
7
8
9

103. 111. Similarly, speaking with the Orlando Business Journal on December

10

27, 2013, Timothy Coombs, crisis communications specialist and public relations

11

professor with the University of Central Florida, commented on the Companys

12

unusual response, stating the attention generated by Blackfish and the accompanying

13

musical guest cancellations [discussed in 147-52,144-49, infra] did require a public

14

statement to defend SeaWorld's mission and methods of operation. Likewise the

15

Seattle Post-Intelligencer noted on January 24, 2014, SeaWorld has spent a

16

considerable amount of money and energy lately trying to undermine and deflect the

17

effectiveness of the film Blackfish, but they are unable to make much progress it just

18

isnt possible to rewrite history in this age of independent media. Moreover, S&P

19

Capital IQ maintained its continued skepticism about SeaWorlds forthrightness with

20

the market, stating in its December 17, 2013 Stock Report: In our opinion,

21

managements passive responses in hopes attention would fade has proven difficult in

22

today social media environment, where messages can be amplified. . . . We believe

23

the impact of sustained negative publicity from the Blackfish documentary will

24

impact visitation into 2014. S&P further found it significant that the films addition

25
26
27

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to Netflix, musical act boycotts and a potential Oscar nomination would bring

Blackfish further attention[.]

104. 112. On March 13, 2014, Defendants reported SeaWorlds 4Q13 and

FY13 financial results, during which the Company reported that for the third

consecutive quarter overall attendance had declined this time by 1.4%. Moreover,

Defendants reported that full year attendance in 2013 had declined by 4.1%, or

approximately one million guests.

105. 113. Once again, Defendants claimed the 1.4% fourth quarter decline was

the expected result of planned pricing and yield management strategies implemented

10

at the beginning of 2013, and blamed the full year decline on the same factors noted

11

during the prior quarter adverse weather conditions and where the holidays and

12

school schedules had fallen on the calendar.

13

106. Notably, according to CW-5, in her experience as a Financial Analyst for

14

various theme parks, weather and timing of Spring Break are the two most common

15

reasons given for a decrease in attendance within the industry. In SeaWorlds case,

16

however, CW-5 did not believe they could be the entire reason for the decrease.

17

Rather, she thought it was logical and obvious that Blackfish was the reason. She

18

further explained that, because Spring Break is such a high volume time, and one that

19

can be planned for, companies always budget their attendance for this time. In

20

addition, CW-5 explained that although attendance can vary from day-to-day, if it

21

decreases for weeks or months, it becomes a serious trend. CW-5 stated that this was

22

what happened at SeaWorld Orlando, which she believed was at least partially

23

attributable to Blackfish. She recalled noticing that the trend had already been going on

24

for months by the spring of 2014.

25
26
27

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107. 114. Barton Crockett, an FBR Capital Markets analyst, specifically

pressed Defendants to discuss Blackfish, asking Atchison to comment on whether

there's any impact that you've noticed at all on satisfaction or attendance or the

desirability of SeaWorld for international licensees? Has this had any impact on any

of that? In response, Atchison noted: I get asked that a lot and proceeded to deny

multiple times that SeaWorld had seen any such impact. In fact, Atchison claimed that

Blackfish was positively impacting SeaWorld by increasing awareness of the

Companys brand and pointed to the Companys record attendance in the fourth

quarter at certainits three branded parks, despite the overall 1.4% decline:

10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25

With respect to the impact on our business, I get asked that a lot, too.
As much as we're asked it, we can see no noticeable impact on our
business. If you follow this -- even this recent announcement, our
SeaWorld parks had record attendance in the fourth quarter of the year,
and are out-performing our other parks by considerable margin.
***
With respect to national surveys and data that we collect around our
reputation efforts and image, there's awareness of the movie that kind
of peaks and drops as CNN -- who is one of the owners of the movie, by
the way -- CNN shows it repeatedly from time to time, so that does
spike on occasion. But our surveys don't reflect any shift in sentiment
about intent to visit our parks.
***
A matter of fact, the movie in some ways has actually made perhaps
more interest in marine mammal parks, and actually even about us. We
have seen that reflected through certain visitor profiles, and certain
guest comments and things we get. The movie did not get an Oscar
nomination in January, and we continue to take proactive efforts
around communicating with our guests and business partners and
others.
***

26
27

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But ultimately the assertions by the animal rights, animal activist


community -- they don't necessarily burden themselves with fact, and
we have to deal with that from time to time. But we have seen no
impact on the business.

108. Atchisons statement that SeaWorld parks had record attendance in the

fourth quarter and are out-performing our other parks by considerable margin was

incredibly misleading for several reasons.

pronouncement was misleading because, as SeaWorld reports in its SEC filings,

[a]pproximately two-thirds of the Companys attendance and revenues are generated

in the second and third quarters of the year. SeaWorld reported 4.5 million guests as

10

its total attendance at all its parks in 4Q13, which only equated to roughly one-sixth of

11

the total attendance (23.391 million) SeaWorld reported for FY 2013. Therefore, this

12

record attendance assertion created a misguided and disproportional impression on

13

investors.

14

out-performing our other parks by considerable margin was misleading because

15

Defendants failed to mention that many of the non-SeaWorld branded parks were

16

partially or entirely closed during 4Q13. Specifically, according to SeaWorlds SEC

17

filings, all of the following parks are closed for all or some of the winter quarter: (i)

18

Aquatica Orlando (Season: May September); (ii) Water Country USA (Season: May

19

September); (iii) Adventure Island (Season: March October); (iv) Busch Gardens

20

Virginia (Season: March October; December); and (v) Sesame Place (Season: May

21

October; December). Thus, for SeaWorld to boast that its three branded parks were

22

out-performing its other parks by a considerable margin, when in fact many of those

23

other parks were actually closed during the quarter, is misleading. Third, Atchison

24

provided no detail to support the basis of his claim that SeaWorld-branded parks

25

experienced record attendance. While, on the same earnings call, Heaney explained

1
2

First, this record attendance

Second, Atchisons statement that SeaWorld-branded parks are

26
27

58
Second Amended Consolidated Amended Class Action Complaint
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that [a]nother way to think about the attendance in the quarter was our SeaWorld

branded parks were up in attendance and our other parks were down which nets down

to the 1.4% decline[,] SeaWorld admittedly does not disclose the attendance figures at

its individual parks to its investors or the public. Thus, SeaWorlds concealment of

these figures prevents investors from being able to confirm the accuracy or falsity of

this statement, leaving investors in the vulnerable position of having to exclusively rely

upon ipse dixit statements like Atchisons regarding the quarterly attendance figures at

individual SeaWorld parks. For all of these reasons, Defendants statements regarding

the purported record attendance at SeaWorld-branded parks during 4Q13which

10
11

investors had no way of verifyingwere dubious and misleading.


109. 115. SeaWorlds attendance slide continued.

On May 14, 2014,

12

Defendants reported SeaWorlds 1Q14 financial results.

13

announced a staggering 13% decline in attendance for the quarter, which they again

14

attributed, in full, to factors other than Blackfish the shift in the timing of Easter and

15

Spring Break and above average precipitation in the Florida market as well as below

16

average temperatures in the Texas market for the first quarter of 2014.

This time, Defendants

17

110. 116. Despite the successive drops in attendance, most analysts continued

18

to accept Defendants stated reasons for the decline. For example, Macquarie (USA)s

19

May 14, 2014 report noted [a]ttendance drops are not new to SeaWorld as a public

20

company unfortunately, but again the reasons make sense and we are encouraged.

21

Likewise, JP Morgans May 15, 2014 report noted, [a]ttendance dropped 13% to

22

3.0m guests, with the roughly 0.5m loss in visitors attributed to weather (200K) and

23

Easter (250k) shifting out of the quarter. Cold weather in Texas and rain in Florida

24

resulted in fewer operating days at some parks. However, the lone skeptic, S&P

25

Capital IQ, again questioned whether SeaWorld was telling the complete truth to the

26
27

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market, noting in its May 15, 2014 Stock Report that negative publicity from a

Blackfish documentary (regarding captivity of killer whales) [had] notably weighed

on the 2013 second half attendance[,] and stating that while SeaWorlds sharp 13%

drop in 1Q14 attendance is partly attributable to this years Easter holiday calendar

shift, we also see potentially lingering fallout from a recent documentary on killer

whales. S&P Capitals market research and reports directly tie Blackfish viewership,

and the corresponding negative publicity surrounding it, to declining attendance at

SeaWorld parks during the Class Period.

111. Further, at least one financial reporter, The Motley Fool, appeared to

10

doubt SeaWorlds denial of Blackfishs impact, stating in a July 18, 2014 report,

11

SeaWorld saw its attendance figures fall from 24.4 million in 2012 to 23.4 million in

12

2013, largely due to Blackfish. Like S&P, The Motley Fool connected the negative

13

publicity from Blackfish to SeaWorlds declining attendance, noting, [s]trong brands

14

still need to be nurtured and protected[.] Nevertheless, SeaWorldthe primary

15

source, who investors trusted to provide the complete truthcontinued to deny that

16

Blackfish had any impact on its business.

17

112. Notwithstanding SeaWorlds public denials regarding Blackfishs impact

18

on attendance, the Company continued to pour resources into its counterattack against

19

the film, including increased retaliation using websites and social media. SeaWorld

20

created a website devoted to Why Blackfish is Propaganda, Not a Documentary.

21

And, in or around June 2014, SeaWorld provided funding and promotional support for

22

the roll out of Awesome Oceana website fiercely critical of Blackfish and

23

animal-welfare advocates. According to his Linkedin.com page, Awesome Oceans

24

Editor-in-Chief, Eric Davis has extensive experience in digital marketing and brand

25

management. Speaking to the Orlando Sentinel on SeaWorlds behalf, Fred Jacobs

26
27

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affirmed the importance of social media sites like Awesome Ocean, stating I would

certainly characterize them as an important part of our marketing and communications

strategy.

113. SeaWorlds aggressive response to Blackfish did not stop there.

According to Bloomberg, at least as early as Thanksgiving Day in 2013, SeaWorld sent

employees to infiltrate PETA and pose as animal rights activists. A February 16, 2016

article on The Dodo reported that, according to a source close to SeaWorld, the

espionage campaign was authorized by SeaWorld vice president of communications,

Fred Jacobs. Jacobs was later fired, a move that, according to the Dodos source, was

10

an attempt to cover up the campaign.

11

114. Manby finally acknowledged that SeaWorld had asked employees to

12

infiltrate PETA on a February 26, 2016 earnings call in a statement that NonProfit

13

Quarterly interpreted as admit[ting] that the practice of spying was at least authorized

14

and possibly intentionally utilized by some in management[.] SeaWorlds stock

15

dropped 11% on this news.

16

115. 117. As set forth below, contrary to Defendants representations

17

concerning the putative lack of impact on attendance caused by Blackfish, Defendants

18

knew or recklessly disregarded that Blackfish was, in fact, causing a decline in

19

SeaWorlds attendance and negatively harming its reputation and operations during the

20

Class Period.

21
22

ii.

The Reasons SeaWorld Provided For The Entire Decline In


Attendance In Each Quarter Throughout The Class Period
Are Not Plausible

23

116. 118. To the extent adverse weather conditions, school and holiday

24

schedule and pricing increases, did, in fact, impact SeaWorlds attendance figures from

25
26
27

61
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April 2013 through May 2014, these factors were not and could not have been the

exclusive causes of the entire decline in attendance, as set forth below.

117. 119. According to the 2013 TEA Report, nearly all of the major theme

park groups with locations in the U.S., including Disney and Universal, realized

increases in domestic attendance for 2013, as compared to 2012. For example, at its

domestic parks, Disney reported a 7% increase for the first half of 2013 (including

2Q13), and comparable attendance figures to the prior year for the rest of 2013.

Moreover, Disney reported a record-setting 3% increase for 1Q14. For its parks

located in Orlando, Disney reported either an increase in or record attendance for every

10

quarter within the Class Period.

11

118. 120. SeaWorld represents to investors that the Company benefits from the

12

high concentration of theme parks operated by several companies in Orlando and

13

Southern California, and that through its core attractions (i.e., orcas and other wild

14

animals) it offers a complementary experience to those offered by fantasy-themed

15

Disney and Universal parks. Thus, when each of the top tenSeaWorlds competitor

16

theme

17

Universalexperienced increases in annual attendance for 2013 versus the prior year,

18

SeaWorld should have seen comparable attendance figures. It did notThe same is true

19

for 2014.

20

attendance increases. Instead, it saw marked decreases in annual attendance in both

21

2013 and 2014, while its competitors enjoyed increases:

parks

located

in

Florida

and

California

i.e.

Disney

and

However, as demonstrated below, SeaWorld did not see comparable

22
23

Park

Location

2012
Attendance

2013
Attendance

Change
(%)

2013
Attenda
nce

2014
Chan
Attenda ge
nce
(%)

24

Magic
Kingdom
[Disney]

Lake Buena
Vista, FL

17,536,000

18,588,000

6.0%

18,588,
000

19,332,
000

Disneyland
[Disney]

Anaheim,
CA

15,963,00
0

16,202,00
0

1.5%

25
26
27

4.0%

62
Second Amended Consolidated Amended Class Action Complaint
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Case 3:14-cv-02129-MMA-KSC Document 123-1 Filed 05/31/16 Page 69 of 175

Epcot
[Disney]

Lake Buena
Vista, FL

11,063,000

11,229,000

1.5%

11,229,
000

2.0%

11,454,
000

Animal
Kingdom
[Disney]
Hollywood
Studios
[Disney]

Lake Buena
Vista, FL

9,998,000

10,198,000

2.0%

10,198,
000

10,402,
00

2.0%

Lake Buena
Vista, FL

9,912,000

10,110,000

2.0%

10,110,
000

10,312,
000

2.0%

Cal.
Adventure
[Disney]

Anaheim,
CA

7,775,000

8,514,000

9.5%

Orlando, FL

7,981,000

8,141,000

2.0%

8,141,0
00

8,141,0
00

0.0%

Orlando, FL

6,195,000

7,062,000

14.0%

7,062,0
00

8,263,0
00

17.0
%

Orlando,
FL

5,358,000

5,090,000

-5.0%

5,090,0
00

4,683,0
00

-8.0
%

Anaheim,
CA

15,963,000

16,202,000

1.5%

16,202,
000

16,769,
000

3.5%

Anaheim,
CA

7,775,000

8,514,000

9.5%

8,514,0
00

8,769,0
00

3.0%

Universal
City, CA

5,912,000

6,148,000

4.0%

6,148,0
00

6,824,0
00

11.0
%

SeaWorld
Orlando
[SeaWorld]

Orlando,
FL

5,358,000

5,090,000

-5.0%

SeaWorld San
Diego
[SeaWorld]

San Diego,
CA

4,444,000

4,311,000

-3.0%

4,311,0
00

3,794,0
00

-12.0
%

Busch
Gardens
Tampa
[SeaWorld]

Tampa,
FL

4,348,000

4,087,000

-6.0%

3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25

Islands of
Adventure
[Universal]
Universal
Studios
Florida
[Universal]
SeaWorld
Orlando
[SeaWorld]
Disneyland
[Disney]
Cal.
Adventure
[Disney]
Universal
Studios
Hollywood
[Universal]

119. 121. As shown, each of SeaWorlds main competitors in the same


geographic regions, Disney and Universal, attained either comparable or increased
attendance figures (over the prior year) in 2013,both 2013 and 2014, often achieving
record attendance in spite of the same generally-applicable factors to which SeaWorld

26
27

63
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attributed its attendance decline. Indeed, a May 25, 2016 Los Angeles Times report

noted that while the top 20 performing parks in North America experienced steady

growth in 2013-2014, [a]ttendance numbers at [SeaWorld] have been flagging since

the release of the 2013 documentary Blackfish. As alleged below, SeaWorlds

attribution of its entire attendance declines to these factors weather, school year and

holiday calendars, and pricing strategies simply does not hold water.

120. 122. Adverse Weather. It is well known within the industry and to

investors that seasonal factors bear upon theme park operations. For instance, adverse

weather conditions, particularly rain, can lead to wash outs at outdoor parks, most

10

commonly during the summer months. Therefore, park operators typically anticipate

11

and account for the impact on their operations of normal weather swings and

12

occasional adverse weather. Of course, park operators in the same geographical

13

location (like Disney, Universal, and SeaWorld in Orlando and southern California)

14

are subject to the same weather conditions.

15

121. 123. As reported by IBIS, however, SeaWorlds amusement parks are

16

geographically dispersed, which helps the company protect itself from localized events

17

and seasonal weather conditions. Indeed, due to the location of its parks, seven of the

18

Companys eleven parks including those in Orlando and California are able to stay

19

open year-round. Given this ability, Defendants regularly assured investors that

20

weather-related impacts tend to flatten out over the course of a year. For instance,

21

during the 2Q13 Earnings Call, Atchison admitted that over the long term these

22

weather effects tend to even out. Defendants nonetheless repeatedly blamed the

23

weather as one reason for the decline in attendance during various quarters in the Class

24

Period and in 2013 as a whole.

25
26
27

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122. 124. For example, SeaWorld blamed one-third of the 9.59% decline in

attendance during 2Q13 on adverse weather, including within Orlando. But, as the

Orlando Sentinel reported following the Companys earnings announcement: Neither

the Walt Disney Co. nor Comcast Corp. [which owns Universal], both of whom

recently reported earnings for the same quarter, cited weather at Walt Disney World or

Universal Orlando.

explanation for decreased attendance, noting that, Disney and Universal parks

which should also be affected by the factors mentioned have been enjoying

record-high visitor numbers. Alluding to Blackfish, the TIME writer noted that the

10

downturn in visitor numbers has taken place during a summer when SeaWorld found

11

itself as the unfortunate subject of a documentary film, suggesting that negative

12

publicity from Blackfish not rain was driving decreased attendance. But, again,

13

investors were left to rely on SeaWorlds word.

TIME too was skeptical of SeaWorlds weather-related

14

123. 125. Similarly, in 1Q14, SeaWorld attributed its staggering 13% decline

15

in attendance in part to adverse weather and fewer operating days in 2014. Yet,

16

despite being subject to nearly identical weather patterns, particularly as applied to

17

Orlando and California, Disney and Universal reported attendance figures for 1Q14

18

that were comparable to or higher than their attendance marks for the same quarter in

19

the prior year.

20

124. 126. School And Holiday Schedules. Both the holiday and school

21

calendar impact theme park operations, attendance and revenue on a quarterly basis.

22

For instance, whether Easter and/or Spring Break fall within the first or second fiscal

23

quarter (i.e., in March or April) or overlap within a quarter has a discernible impact on

24

attendance (and therefore revenue derived from attendance and in-park spending),

25

boosting attendance in the quarter that contains Easter and Spring Break, and lowering

26
27

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the attendance in the quarter that does not. As Heaney assured investors during the

Class Period, however, such impact largely flattens out over the course of the full year:

The Easter effect, obviously, wont repeat in the second half and thats one piece of

attendance well pick up in the third and fourth quarters.


125. 127.

Nonetheless, Defendants allocated blame for half of the 13%

attendance decline in 1Q14 to the timing of Easter and Spring Break. This was simply

not plausible. In response, Motley Fool, among others, asked [h]as Blackfish hurt

sales, and questioned SeaWorlds explanation in part due to the fact that rival parks in

the same geographic area were unaffected by exactly the same factors: Disney is

10

often compared to SeaWorld, and Mickeys theme parks saw increased attendance in

11

the first quarter, while SeaWorlds dropped 13%, which it attributed to a late Easter

12

(that wasnt in the first quarter) and weird spring-break timing. But why didnt late

13

Easter eggs and confused spring breakers have the same effect on Disney World?

14

CW-5 also doubted SeaWorlds explanation, noting that weather and the timing of

15

Spring Break are the two most common reasons given by parks for a decrease in

16

attendance and that such reasons should not be taken as gospel. CW-5 went on to

17

explain that because Spring Break is such a high volume time, and one that can be

18

planned for, theme park companies carefully plan and budget their attendance for this

19

time.

20

126. 128. Pricing. It has become an [a]nnual springtime tradition in the

21

theme park industry for operators particularly those located in central Florida to

22

increase ticket prices around Memorial Day in anticipation of the annual boom in

23

tourism that accompanies summer school vacations, according to TIME. Each year,

24

Disney, Universal and SeaWorld seek to capitalize on the increased flow of consumers

25
26
27

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during the summer months. Notably, as reported by TIME, whenever one raises

prices, at least one of the others (if not both) follows suit.

127. 129. While for the entire 2013 fiscal year, SeaWorld blamed a purported

company-specific pricing strategy for some portion of the decline in attendance,

increased pricing and similar strategies actually boosted attendance figures at

SeaWorlds competitors. For example, in the summer of 2013, each of the Big Three

implemented pricing increases. In May 2013, TIME reported that Universal Orlando

raised the price of single-day admission to $92, becoming the first theme park to cross

the $90 admission mark. Likewise, the Los Angeles Times noted that Disney raised

10

entry prices to both of its parks in June 2013, including raising a single-day adult ticket

11

6%. In June 2013, SeaWorld too raised admission prices to $92 and $89 for a

12

single-day adult ticket at SeaWorld Orlando and Busch Gardens Tampa, respectively.

13

128. 130. Notwithstanding the fact that they also implemented pricing

14

increases applicable to their companies flagship parks in Orlando, Disney and

15

Universal, unlike SeaWorld, met or beat prior attendance numbers in 2013, and

16

throughout the Class Period. When Atchison claimed a portion of the 9.59% drop in

17

2Q13 was part of SeaWorlds willing and deliberate effort to decrease the number of

18

visitors as a trade-off for high-priced admissions and revenues per guest, TIME again

19

questioned the veracity of the excuse, citing the experience of SeaWorlds competitors

20

just down the road.

21

129. 131. Additionally, while SeaWorld raised certain baseline ticket prices, in

22

a historically rare and unexpected move, it slashed certain other ticket prices in

23

multiple markets following the announcement of SeaWorlds 2Q13 9.59% attendance

24

decline. Bloomberg reported on August 29, 2013 that SeaWorld Orlando had cut $42

25

off the price of a midweek ticket purchased online (a 46% discount) while SeaWorld

26
27

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San Antonio had started offering a free childrens ticket with an adult ticket purchase

midweek, a $71 value. CW-2 believed that SeaWorld executives resorted to lowering

prices in an attempt to attract guests. As reported on August 29, 2013, Dennis Speigel,

president of International Theme Park Services Inc., told Bloomberg [w]hen youre

seeing those kinds of discounts in the first part of August, that's telling you attendance

is off. Mary Waring, owner of a website that provides information about theme parks

and theme-park centric vacation packages told Bloomberg that in the 10-plus years

she had been listing SeaWorld coupons and deals online, she had never seen a

SeaWorld promotion as aggressive.

10

130. 132. In or around late-February 2014, both Disney and Universal raised

11

prices for single-day admission tickets. Commenting on Disneys early increase, Doug

12

Mitchelson, a Deutsche Bank analyst, told the Orlando Business Journal that the early

13

increase evidenced positive park attendance trends across the board: The increase

14

came more than three months earlier than last year, which suggests that park

15

attendance trends must be healthy enough that [management] believes a price increase

16

will not unduly negatively impact marketing.

17

SeaWorld raised its general admission price $3 for both SeaWorld Orlando and Busch

18

Gardens. However, while Disney and Universal saw attendance rise, SeaWorld once

19

again failed to catch on to the healthy park attendance trend, dropping 13% in

20

attendance for that quarter.

21
22
23

E.

Like clockwork, in May 2014

Unlike Its Competitors, SeaWorld Was Plagued By Blackfish, Which


Generated Extraordinary Negative Public Response and Media
Attention Throughout The Class Period

24

131. 133. Unlike Disney and Universal, prior to and throughout the Class

25

Period SeaWorld was under continual fire arising from the damning indictment of the

26

Companys business practices in Blackfish. From the time the film premiered in

27

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January 2013, the media regularly reported on Blackfish and its potential negative

impact on SeaWorlds reputation and business. As its distribution and notoriety

increased after January 2013, the film sparked a groundswell of anti-SeaWorld

commentary and action from an ever-expanding bloc of public citizens, both

prominent and grassroots. This phenomenon was even given a name the Blackfish

effect by observers. It entailed traditional forms of protest, such as demonstrations

and lobbying by interest groups, and also leveraged the influence of modern forms of

social media, such as online petitions, issue-dedicated websites and celebrity

statements on broadcast platforms such as Twitter.

These and other responses

10

generated by Blackfish urged the public to boycott SeaWorlds parks in response to the

11

Companys treatment of its killer whales, and put pressure on organizations and

12

individuals doing business with SeaWorld to end existing or planned relationships with

13

the Company.

14

132. 134. Such facts led the media, as well as analysts following and reporting

15

on SeaWorld, to query whether at least a portion of the Companys remarkable

16

attendance decline was attributable to consumer sentiment and brand harm from

17

Blackfish. However, despite the ever-growing public backlash stemming from the

18

film, Defendants repeatedly assured investors that Blackfish was not having any impact

19

whatsoever on SeaWorlds declining attendance.

20

i.

21

Social Media Platforms Like Twitter Successfully Moved The


Public To Watch Blackfish And Boycott SeaWorld

22

133. 135. In the Companys IPO Offering Materials, SeaWorld identified

23

online and social media platforms as being key to its ability to [d]rive [i]ncreased

24

[a]ttendance.

25

defensive throughout the Class Period, as the negative perception of the Company

Ironically, however, these same platforms put SeaWorld on the

26
27

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generated by Blackfish spread like wildfire across the internet and Twitter following

the films premiere.

134. 136. Prior to the films screening at Sundance, in December 2012 the

Twitter

@blackfishmovie was used: (i) to promote the film and re-convey its message; (ii)

strengthen opposition to SeaWorld; (iii) inform the public when and where the film

was being screened; (iv) provide daily updates concerning the availability of the film

on various platforms, such as Netflix, DVD and iTunes; and (v) provide real-time

access to media coverage of the film and its impact on SeaWorld.

username

@blackfishmovie

was

created.

Among

other

things,

10

135. 137. According to CW-1, at or around the time of the IPO in April 2013,

11

SeaWorld had a variety of hashtags that were intended to be used by SeaWorld fans

12

such as #SeaWorldCares and #$SEAS, many of which were intended to celebrate the

13

Companys fifty (50) year anniversary. In response to Blackfish, however, CW-1

14

stated that individuals were posting hundreds of anti-SeaWorld posts each day and

15

would hijack (or include) those hashtags in order to spread their anti-SeaWorld

16

messages by reaching SeaWorld followers. CW-1 recalled that a significant portion of

17

the tweets specifically mentioned Blackfish and continued through the summer of 2013

18

as Blackfish was released in theaters domestically. Moreover, CW-2 believed that the

19

backlash from Blackfish essentially ruined the Companys attempt to celebrate its 50th

20

Anniversary in 2014.

21

136. 138. Prominent celebrities utilized Twitter to urge their millions of

22

followers many of whom fell squarely within SeaWorlds target market of people

23

between ages ten (10) and nineteen (19) to watch Blackfish and avoid SeaWorld.

24

Specifically, around the time of Blackfishs theatrical release in July 2013, celebrities,

25

including Olivia Wilde, Ellen Page, Evan Rachel Wood and Kesha, each made

26
27

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statements on their Twitter pages encouraging followers to watch the film, and

condemning the apparently inhumane treatment of animals by SeaWorld.

example, on July 17, 2013, Olivia Wilde, who maintains 1.5 million followers, wrote:

Only movie I want to go see this week: Blackfish. Watch out, Sea World. We are on

to you. On August 12, 2013 Singer Kesha, who maintains 3.6 million followers,

urged her followers to watch the film writing, ANIMALS! Learn the truth about

marine

@MagnoliaPics #Blackfishhttp://t.co/jn7eSGQSzs @humanesociety @MagnoliaPics

#Blackfish. Likewise, on September 8, 2013, Russell Brand, who maintains more

10

than 9 million followers tweeted, Do watch Black Fish. Dont go to SeaWorld, a

11

stain upon humanity posing as entertainment. #liftedfromanearlyreviewofmine.

mammal

theme

parks:

http://t.co/jn7eSGQSzs

For

@humanesociety

12

137. 139. The social media conversation generated by Blackfish reached a

13

fever pitch following the CNN premiere of the film on October 24, 2013. This was no

14

accident. Lila King, CNNs senior director for social news, explained that CNN aimed

15

to create a parallel experience on Twitter and TV stating, Our approach was to create

16

a back channel to the broadcast, featuring live Tweets from experts [] and many

17

others. King explained that CNN purposely integrated Twitter into the broadcast by

18

inviting our audiences to join the conversation by showing the #blackfish hashtag on

19

the screen, and also curating the conversation in live blog on CNN.com.

20

138. 140. CNNs strategy of deliberately leveraging social media on Twitter to

21

boost TV ratings by creating a synergistic effect between its cable network and its

22

internet and social media platforms worked. On the CNN premiere night alone, there

23

were 67,673 Tweets seen by 7.3 million people about Blackfish, which made it the

24

most talked about show on CNN in October 2013. According to CW-1, Blackfish

25

became a trending topic shortly after it aired. In the weeks following the premiere, as

26
27

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confirmed by CW-1, numerous high-profile celebrities, with some of the most

followed accounts on Twitter, continued to Tweet about the film and their disdain for

SeaWorld and its brand, thereby magnifying the scale of the controversy surrounding

SeaWorlds apparent mistreatment of its orcas.

139. 141. For example, on November 3, 2013, then nineteen (19) year old

singer and former Nickelodeon star Ariana Grande, who maintains 26.2 million

followers on Twitter, wrote, I highly recommend all of my fans watch #Blackfish and

never go to @Seaworld again. Used to love that place. Beyond heartbroken #Free

Tilly. Grandes statement excoriating SeaWorld was the most re-tweeted of that

10

night. Among other high-profile celebrities with massive Twitter followings to Tweet

11

disparaging statements about SeaWorld in light of Blackfish were: (i) Miley Cyrus,

12

with 19.2 million followers; (ii) Stephen Fry, with 8.6 million followers; and (iii) Zach

13

Braff, with 1.4 million followers.

14

140. 142. As reported by CNN on December 20, 2013, social media sites

15

became and remained filled with comments from people vowing theyll never go to

16

the [SeaWorld-owned] parks again after viewing the film. According to CW-1, by

17

January or February 2014, SeaWorld began an effort to respond to social media

18

postings as they occurred. Typically, the Company would post a link to their open

19

letter, discussed above. CW-1 worked within a so-called war room in which she

20

and other employees in Interactive Marketing worked on various digital media for the

21

Companys website in response to Blackfish. However, CW-1 stated that when

22

SeaWorld would respond, the anti-SeaWorld sentiment would only magnify.

23

141. 143. According to CW-2, Blackfish was at least partially the reason for

24

declines in attendance in 2013 and early 2014, when she left the Company. In fact,

25

CW-2 attended weekly meetings that were also attended by the General Manager, the

26
27

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Vice President of Marketing and the Vice President of Finance for SeaWorlds San

Antonio park, where attendance at the park was discussed and, in at least one such

meeting held between the time of Blackfishs release and February 2014, she recalled

that it was acknowledged that the negative press from Blackfish seemed to be having

an impact on attendance.

6
7

ii.

External Polls And News Stories Showed That Blackfish Had


Negatively Impacted The Publics Willingness To Attend
SeaWorld Parks

142. 144. In order to gauge public sentiment on Blackfish, various media

groups and publications conducted surveys to poll the public. CNN, for example, ran a

10

poll during an October 25, 2013 episode of Crossfire asking viewers [w]ould you take

11

your kids to SeaWorld in light of the information revealed by Blackfish.

12

approximately 3,000 responses, 86% stated No.

Of

13

143. 145. Tellingly, SeaWorld was caught red-handed attempting to

14

manipulate the results of a similar poll conducted by the Orlando Sentinel in January

15

2014. Shortly after the poll began, it was revealed by the news group that more than

16

50% of the responses were from an IP address owned by SeaWorld. Ultimately, once

17

this tactic was uncovered and the poll was cleansed, two-thirds of voters responding to

18

that poll which asked whether CNNs Blackfish [sic] documentary changes your

19

perception of SeaWorld answered in the affirmative. Had SeaWorld not believed

20

that Blackfish was affecting its business, SeaWorld would have seen no need to

21

manipulate the results of such polls in January of 2014.

22

144. 146. Similarly, Blackfish prompted schools to either cancel long-standing

23

annual field trips to SeaWorlds parks or publicly swear off attending the parks until

24

SeaWorld changed its policies. For example, just weeks after Blackfish aired on CNN,

25

in November 2013, San Diegos Point Loma High School produced a striking video

26
27

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response to the film, vowing never to return to the parks until the whales and animals

were retired from show business. The video entitled Dear SeaWorld, received

nationwide attention, was aired on CNN and reported on by numerous publications and

received a Compassionate Classroom Award from PETA, which also made the video

available on its website. As reported by CNN in December 2013, Point Dume Marine

Science Elementary School in Malibu, California prompted by the concerns of a

10-year old abruptly canceled its long-standing trip to the Companys park over

concerns about the treatment of whales as shown in Blackfish. These cancellations and

others indicated that children and teens the individuals who drive parents and

10
11
12

families to travel to the parks were no longer supporting SeaWorld.


iii.

The Blackfish Effect Swallowed SeaWorlds Annual Music


Festival

13

145. 147. Each year SeaWorld hosts Bands, Brew & BBQ, a live concert

14

series at SeaWorld Orlando and Busch Gardens in Tampa during February and March,

15

featuring top classic rock and country bands and artists, BBQ from Central Floridas

16

top local smokehouses, and other festivities. The concerts are included with regular

17

admission to the parks. According to SeaWorlds public filings, the Companys

18

market is further diversified among a more stable base of local visitors, non-local

19

domestic visitors and international tourists. Bands, Brew and BBQ is part of the

20

Companys stated business strategy to increase non-peak demand through seasonal

21

and special events and concerts i.e., to drive off-season attendance in prime markets.

22

SeaWorld Orlando and Busch Gardens in Tampa depend on the annual Bands, Brew

23

and BBQ concert series to increase park attendance and overall revenue during the

24

typically slow mid-winter months.

25

146. 148. In late 2013, as the Blackfish controversy continued ablaze, nearly

26

every act slated to perform at Bands Brew and BBQ received a petition through
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Change.Org (along with significant pressures from other social media platforms)

imploring the band or artist to cancel its performance. Change.org is the worlds

largest online petition platform and seeks to empower individuals to create change by

offering them the ability to start a campaign and mobilize supporters. These particular

petitions were successful, prompting nearly every artist scheduled to perform at the

series in February and March 2014 to withdraw. Beginning in November 2013 and

through mid-January 2014, the following artists canceled their performances: (i) The

Barenaked Ladies; (ii) Willie Nelson; (iii) Cheap Trick; (iv) Heart; (v) Martina

McBride; (vi) 38 Special; (vii) Trisha Yearwood; (viii) REO Speedwagon; (ix) Pat

10

Benatar; and (x) Beach Boys.

11

147. 149. For example, The Barenaked Ladies the first to withdraw

12

received a petition signed by 11,782 supporters, prompting the group to alert the public

13

on their Facebook page:

14

understand all of it, but we dont feel comfortable proceeding with the gig at this time.

15

Activists successfully directed similar online petitions at other performers including

16

Willie Nelson, Trisha Yearwood, and Cheap Trick.

This is a complicated issue, and we dont claim to

17

148. 150. In nearly every instance, the artist specifically cited the controversy

18

surrounding Blackfish as the basis for the cancellation. In explaining his decision to

19

cancel, Willie Nelson condemned SeaWorlds practices, stating, I don't agree with the

20

way they treat their animals, [] it wasnt that hard a deal for me. Likewise, sisters

21

Nancy and Ann Wilson of Heart acknowledged their decision to cancel at SeaWorld

22

was due to the controversial documentary film.

23

149. 151. These cancellations attracted international attention, as news sources

24

reported on each successive cancellation over the seven week period beginning

25

November 27, 2013 with The Barenaked Ladies announcement and continuing

26
27

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through January 15, 2014 with the Beach Boys announcement that they would not

perform. A December 11, 2013 Orlando Sentinel article entitled, Will SeaWorld face

long-term Blackfish backlash? noted that, at a minimum, withdrawals from the

concert series threatened to sabotage SeaWorlds Bands, Brew and BBQ program,

which the park depended on to drive traffic during the typically slow midwinter

months. Potentially much more damaging, the article noted that the cancellations

might help sustain Blackfish in the public consciousness, raising the risk that the film

and its criticisms could do lasting damage to SeaWorlds brand.

150. 152. Atchison admitted in his December 20, 2013 interview with the

10

Orlando Sentinel that the cancellations ended up getting more coverage and became a

11

story of its own. Atchison further explained that the Company decided to publish the

12

December 2013 full-page open letter on social media and within major newspapers in

13

order to refute what he described as misconceptions that were floating around related

14

to that coverage. SeaWorlds ad, entitled Open Letter from SeaWorlds Animal

15

Advocates was widely viewed as evidence that the Company was concerned about

16

potential long-term brand damage from Blackfish, as reported by the Sentinel, and

17

was, according to CNN and the Orlando Business Journal, concerned by both

18

Blackfishs impact on a very key part of their audience and the attention generated

19

by Blackfish and the accompanying musical guest cancellations.

20
21

iv.

In The Wake Of Blackfish, Long-Standing SeaWorld Sponsors


And Strategic Partners Jumped Ship

22
23

151. 153. Amidst the growing negative publicity directed at SeaWorld

24

throughout the Class Period, pressure from activists to cut ties with SeaWorld and

25
26
27

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extensive media coverage of this pressure, many SeaWorld corporate partners

terminated their relationships with SeaWorld.

152. 154. For example, in October 2013, activists initiated a Change.org

petition urging Southwest Airlines to end its relationship with SeaWorld. By January

2014, the petition had garnered 27,000 signatures. In a widely reported story, dozens

of protesters delivered the petition to Southwests headquarters in Dallas on January 9,

2014, prompting the airline to publicly respond. According to CW-1, Southwest

contacted SeaWorld and inquired about Blackfish in response to a slew of negative

Facebook and Twitter messages Southwest was receiving due to its association with

10

SeaWorld. Southwest did not cut ties with SeaWorld immediately, but acknowledged

11

the Blackfish controversy stating: We are engaged with SeaWorld related to the recent

12

concerns being raised. We are in a listening and education mode.

13

153. 155. In November 2013, petitions by PETA and the public implored

14

Macys to ban SeaWorld from participating in the annual Macys Thanksgiving Parade

15

later that month. According to the Huffington Post, Macys also received more than

16

80,000 emails to this end, while an online petition started by PETA seeking a similar

17

ban likewise received more than 80,000 signatures.

18

154. 156. The impact of these petitions, collectively signed by hundreds of

19

thousands of individuals, was amplified by extensive media coverage of them. For

20

example, a January 15, 2014 article on CNBC entitled, Southwest Air, others,

21

pressured to break ties with SeaWorld discussed the Change.org petition directed at

22

Southwest and noted that on Change.org alone, there are more than two dozen

23

Blackfish-inspired petitions, including one asking Toys R Us to stop selling a

24

SeaWorld-themed Barbie and another asking Groupon to stop featuring discounted

25

SeaWorld deals. Similarly, a January 13, 2014 National Geographic article reporting

26
27

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on the Blackfish effect noted that there were more than twenty-one (21)

Blackfish-inspired Change.org petitions, including many aimed at destroying

SeaWorlds relationships with corporate sponsors and partners, among them

Southwest Airlines, Toys R Us, and Groupon.

155. 157. A Change.org petition was also effective in persuading Taco Bell,

which had been offering discounts on tickets to SeaWorld, to cut ties with SeaWorld in

May 2014. Likewise, on May 16, 2014, after consulting PETA, STA Travel, a

company which provides flights, accommodation, tours and expeditions for 2.5 million

students and young people, announced that it would stop booking trips to SeaWorld in

10

Orlando and San Diego.

11

156. 158. By this point, association with SeaWorld was perceived as being so

12

toxic that on June 22, 2014 Outdoor Play, a company specializing in outdoor apparel

13

and equipment, declined to fill an order placed by SeaWorld. The CEO of Outdoor

14

Play wrote in a letter to SeaWorld, Although I would love to take your money, our

15

company does not support the ethics of your business model. Likewise, on July 24,

16

2014, Savings.com, a company that specializes in digital coupons, stopped offering

17

deals on SeaWorld tickets after Savings.coms chief executive officer was contacted

18

by PETA and watched Blackfish.

19

157. 159. This trend of companies terminating their relationships with

20

SeaWorld was amplified when Southwest Airlines, after enduring the intense and

21

well-publicized efforts of activists for almost ten (10) months, announced on July 31,

22

2014 that it would not be renewing its 26-year partnership with SeaWorld. While a

23

press release stated that the break was mutual and based on shifting priorities, every

24

major news source reporting on the announcement noted that Southwest had been

25
26
27

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subject to massive activist pressure in the form of protests and a Change.org petition

signed by more than 32,000 people, urging it to terminate the partnership.

158. 160. Following the Southwest Airlines announcement, other important

corporate partners followed suit, and ended their relationships with SeaWorld. In

October 2014, the Orlando Sentinel reported that Virgin America, JetBlue, and Alaska

Airlines also had terminated their promotional partnerships with SeaWorld.

November 2014, the Orlando Sentinel reported that Panama Jack, an Orlando-based

sunscreen company, would end its relationship with SeaWorld effective February

2015. Finally, on November 14, 2014, Hyundai Motors America Communications

10

Executive Director Chris Hosford confirmed that Hyundai had ended its relationship

11

with SeaWorld. Remaining sponsors American Express and British Airways are

12

currently subject to similar pressures through Change.org petitions, signed by 75,000

13

and 265,000 individuals, respectively.

14

In

159. 161. The fallout for SeaWorld from Blackfish-generated controversy is

15

ongoing.

16

Dolphins, which had previously offered ticketholders free admission to SeaWorld, had

17

ended its marketing partnership with SeaWorld.

On January 15, 2015, the Orlando Sentinel reported that the Miami

v.

18
19

Proposed California Legislation Inspired By Blackfish


Threatened SeaWorlds Ability To Hold Captive Orcas In
California

20
21

160. 162. On March 7, 2014 national media outlets reported that California

22

Assembly member Richard Bloom had introduced legislation in the state Assembly

23

that would ban orca performances, breeding or artificial insemination in the state of

24

California.

25

widespread public reporting.

The proposed legislation was closely associated with Blackfish in

26
27

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161. 163. For example, in a March 7, 2014 article entitled California

Lawmaker Introduces Blackfish InspiredInspires California Orca Captivity Bill,

U.S. News & World Report reported:

4
5
6
7
8

The Oscar-shortlisted documentary Blackfish has already created a


public relations nightmare for SeaWorld, and now it looks like the
theme parks worst fears could be coming true. The film, which alleges
that killer whales are gravely mistreated by the aquatic entertainment
theme parks, has inspired a California lawmaker to introduce
legislation that would ban the captivity of orcas.
.

9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25

The bill would ban orca performances, breeding and artificial


insemination in the state. Orcas would only be allowed kept in captivity
for the purposes of rehabilitation and release. It would also ban the
import and export of killer whales across state lines, meaning the 10
killer whales currently in captivity California would have to stay there,
but in sea pens not open to public, unless they can be returned to the
wild.
162. 164. The media repeatedly noted the direct link between Blackfish and
the proposed bill. Indeed, some press outlets coined the proposed legislation The
Blackfish Bill. For example, The Voice of San Diego published an article on March 7,
2014 entitled So-Called Blackfish Bill Could Devastate SeaWorld, which noted that
the proposed bill contained measures largely motivated by Blackfish and that the
movies director, as well as three opponents of SeaWorlds treatment of killer whales
interviewed in the film, appeared with the sponsor of the bill at the press conference
announcing the bill.

OtherSimilarly, on April 8, 2014, USA Today reported

Assemblyman Richard Bloom, D-Santa Monica, has proposed legislation banning the
use of orcas for performance purposes at California aquatic theme parks as a result of
details revealed in the movie Blackfish. Several other articles published on March 7,

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2014 in outlets as diverse as USA TodayNPR and The Hollywood Reporter repeatedly

referenced the Blackfish effect when reporting on the proposed bill and its potentially

disastrous effects for SeaWorlds business. Accordingly, the direct link between

Blackfish and the California legislation it precipitated were squarely in the public eye.

163. 165. However, as TIME reported in its online news platform on April 8,

2014, the so-called Blackfish bill was tabled for further study at a committee

hearing in Sacramento.

approximately twelve (12) months. The California Assemblyman who introduced the

bill was later quoted by Bloomberg as stating, with respect to the bills tabling in April

10

2014: SeaWorld went to the mat on this issue, and brought in big guns to lobby for

11

the bill to be tabled.

12

F.

13
14
15
16
17
18
19
20
21
22

According to TIME, the study was expected to take

The Truth Concerning Blackfishs Impact On SeaWorld Emerges

164. 166. On August 13, 2014, after categorically denying for a year and half
that Blackfish had impacted the Company at all, SeaWorld finally admitted that, for the
first time, that Blackfish was hurting attendance at SeaWorld parks. Specifically,
SeaWorld stated attendance in the [second] quarter was impacted by demand
pressures related to recent media attention surrounding proposed legislation in the
state of California [i.e., the Blackfish Bill]. Although SeaWorld refused to say the
word Blackfish, SeaWorlds statement effectively serve[d] as an admission that,
despite claims to the contrary, the movie ha[d] indeed had an adverse effect on the
business.6

Myriad news sources reporting on this announcement construed

SeaWorlds statement as a belated admission that Blackfish was hurting

23
24
25
26
27

SeaWorld Finally Confirms a Blackfish Backlash to Investors, Adweek.com,


August 13, 2014.
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attendancean admission so stark that The Wall Street Journal described this stark

admissionit as an about face.

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4

165. In direct response to this news, SeaWorlds common stock price tanked
$9.25 per share, or nearly 33%.

166. 167. More specifically, on August 13, 2014, SeaWorld: (i) filed with the

SEC the Companys quarterly report on Form 10-Q for the three-month period ended

June 30, 2014 (the 2Q14 Form 10-Q), which was signed by Heaney and Swanson;

(ii) issued a press release announcing its second quarter 2014 results (2Q14 Press

Release); and (iii) held the Companys second quarter earnings conference call

10

(2Q14 Earnings Call), in which Atchison and Heaney participated on behalf of

11

SeaWorld. SeaWorld disclosed dismal revenues, driven by weak attendance levels, for

12

the second quarter and the first half of 2014, severely cut its revenue guidance for the

13

year, and attributed its disappointing performance in part to Blackfish-related causes.

14

167. 168. SeaWorld disclosed that in 2Q14 its revenues had fallen 1%, or $6.1

15

million, compared to 2Q13, and that its revenues for the first half of 2014 were down

16

$32.5 million, or 5%, compared to the first half of 2013. The Company further

17

disclosed that in 2Q14 it had earned $0.43 per diluted share, and revised its revenue

18

guidance for 2014 sharply downwards, stating the Company now expects full year

19

2014 revenue to be down in the range of 6-7% compared to the prior year.

20

168. 169. SeaWorld gave reasons forIn an attempt to explain these

21

disappointing results, explainingSeaWorld stated that the decrease in revenue was

22

driven by a 4.3% decline in attendance in the first half of 2014, and that [a]ttendance

23

for the first half of 2014 was largely impacted by a decrease at the Companys

24

destination parks primarily in the second quarter as discussed in the preceding

25

section. In the preceding section, SeaWorld stated that lower attendance at the

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Companys destination parks [was] due to a combination of factors, including the

school calendar, new attractions at the companyCompanys competitor parks, and a

delay in opening a SeaWorld attraction.

Company believes attendance in the quarter was impacted by demand pressures

related to recent media attention surrounding proposed legislation in the state of

California. The Company had finally admitted that Blackfish was hurting attendance

at SeaWorld parks.

[I]n addition, SeaWorld stated, the

169. 170. The Companys reference to legislation was a reference to the

so-called Blackfish Bill. Indeed, on the Companys 2Q14 Earnings Call, Felicia

10

Hendrix, an investment analyst from Barclays Capital, questioned why that bill, which

11

was introduced in March 2014 and tabled in early April 2014, would have a new

12

attendance effect in August 2014, noting that the Company had not stated that the

13

proposed bill was having any effect on attendance on its prior earnings call in May

14

2014. Hendrix asked, I dont understand the commentary regarding the proposed

15

legislation having an effect on attendance because that was resolved in early April.

16

And when you addressed this in May, that didnt come up as an issue at all. So Im just

17

wondering why you thought that was an issue in the quarter.obviously was a reference

18

to the so-called Blackfish Bill, and the entire Blackfish effect caused by the film.

19

See 160-61. Indeed, no reasonable person could construe SeaWorlds August 13,

20

2014 disclosure as anything but an admission that Blackfish was a cause of SeaWorlds

21

attendance declines. Although SeaWorld specifically referred to the legislation instead

22

of more candidly calling Blackfish by name, it was widely understood that SeaWorlds

23

reference to the Blackfish Bill was an admission of the impact of Blackfish itself. For

24

example, on August 12, 2014, Cinemablend.com reported:

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171. Atchisons response left no doubt that when the Company did not include

the Blackfish Bill as a factor impacting attendance declines in May 2014, it lacked a

reasonable basis for doing so. Atchison stated: With respect to the California

legislation, as we spoke in May . [A]t that point in time, we were really still

grappling with what impact there would be related to the news attention around that

legislation. So Im not sure that we had a clear view on what that would look like.

Thats a rather unprecedented event for us and difficult to model in that respect.

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SeaWorld reveal[ed] the financial results for the second quarter of


2014, and within the wording the company finally admits that they
have a bit of a Blackfish problem . . . . While SeaWorld didnt specify
Blackfishs impact by name, the quote you read above is actually a huge
step when compared to the amount of denial that was coming out of the
company about the documentary.

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170. 172. After the Company disclosed that Blackfish-related attendance

15

declines had caused weak revenues and a downward revision of guidance, SeaWorlds

16

common stock price plunged, as reported by industry, business and financial press.

17

For example, the Wall Street Journals online site, WSJ Blog, reported during trading

18

on August 13, 2014 that SeaWorlds common stock price was tank[ing] on news that

19

protests and negative publicity took a significant toll on the companys

20

second-quarter results. The report noted that SeaWorld had reported That same day,

21

the Wall Street Journal reported that SeaWorld blamed its disappointing

22

second-quarter results and slashed its revenue guidance for the year, and had blamed

23

the on the recent media debate about its treatment of captive orcas, saying the

24

negative attention has hurt attendance. The report further stated that the controversy

25

was sparked last year in the wake of Blackfish, and that the Companys attribution of

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attendance declines to demand pressures related to recent media attention surrounding

proposed legislation was a reference to the California bill proposed in March 2014

aiming to restrict SeaWorlds ability to showcase some animals in that state. Finally,

the report concluded that the Companys admission that Blackfish had hurt attendance

and revenues represented an about face for SeaWorld, which late last year was

singing a different tune, citing Atchisons December 2013 statements that Blackfish

had had no impact on our business.

173. Dow Jones also published a wire during trading on August 13, 2014,

reporting that SeaWorld had slashed its revenue guidance for the year as the

10

theme-park operator reported underwhelming results and attendance for the second

11

quarter. Shares of the companywhich acknowledged that media attention about

12

legislation in California to end the orca shows weighed on attendancefell nearly

13

30% in morning trading as its results for the period missed analysts expectations by a

14

wide margin.

15

171. SeaWorlds announcement was widely recognized as a long overdue

16

acknowledgment of Blackfishs impact on the Company since the film debuted.

17

Indeed, several media sources observed that SeaWorlds announcement was the end of

18

the Companys long period of denial regarding Blackfishs effect on SeaWorlds

19

business.

20

Companys admission that Blackfish had hurt attendance and revenues represented an

21

about face for SeaWorld, which late last year was singing a different tune, citing

22

Atchisons December 2013 statement that Blackfish had had no impact on our

23

business. Similarly, in an August 13, 2014 New York Magazine article entitled

24

SeaWorld: Remember When We Said That Blackfish Movie Didnt Hurt Us? Well

25

Never Mind, Kevin Roose noted that SeaWorld attempted to first ignore the film then

Indeed, the Wall Street JournalFinally, the report concluded that the

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attack it, all while maintaining that the film had no impact on business. Specifically,

Roose noted:

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SeaWorld changed course, and admitted, finally, that the backlash is


taking a toll after all. . . . In todays press release, SeaWorld admitted
for the first time that Blackfish may be hurting attendance, blaming
people skipping their parks owing to recent media attention
surrounding proposed legislation in the state of California.

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172. Roose likened SeaWorlds conduct to that of Big Tobacco, which


remained enormously profitable even as its public image was being attacked, then
woke up years later to find that, actually, all those anti-smoking ad campaigns had
made a mark. Adweek.com reported, in an August 13, 2014 article entitled,
SeaWorld Finally Confirms a Blackfish Backlash to Investors:

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SeaWorld has been very insistent in its messaging since CNNs


Blackfish expose surfaced with variations on The documentary is
skewed and it will not affect our business in any way. . . . Today,
however, the company officially changed its tune in a telling press
release. . . . Earlier this year, USA Today tied the law [the Blackfish
Bill], proposed by California assemblyman Richard Bloom, directly to
details revealed in the movie Blackfish. Even if the act (which has
been tabled in the interest for further research) fails to pass, this
release effectively serves as an admission that, despite claims to the
contrary, the movie has indeed had an adverse effect on the business.

21
22

173. 174. Similarly, in an August 13, 2014 article entitled SeaWorld Shares

23

Hit As Negative Publicity From Film Hurts Revenue, the Financial Times reported

24

that this quarter marks the first time management has mentioned Blackfish-related

25

issues in its earnings results. Travel industry news and analysis website SKIFT

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posted an article on August 13, 2014 entitled SeaWorld Concedes Blackfish Hurt

Attendance In Second Quarter. The Christian Science Monitor likewise reported on

August 13, 2014, on SeaWorlds dismal second quarter 2014 earnings in an article

entitled SeaWorld Earnings, Stocks Plunge As Animal Welfare Debate Rages. The

article set forth the Companys disappointing quarterly results before stating, So

whats behind the numbers? For[f]or the first time, SeaWorld is saying that media

attention surrounding the treatment of its animals is hurting attendance at its parks.

The report quoted an industry expert as follows:

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[SeaWorlds] attendance has been flat since Blackfish came out,


Andy Brennan, lead analyst at IBISWorld, an industry research group,
said in an interview. Essentially the company in previous statements
said the decline in attendance was caused by other factors, but now they
are having to justify bad earnings and why stock prices are going
down. Mr. Brennan said SeaWorld is underperforming compared to
[other companies] in industry and that the negative attention is to
blame.

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174. Moreover, on August 14, 2014, the New York Post directly tied
SeaWorlds announcement to Blackfish and quoted another industry expert who also
explicitly recognized the longstanding effect of Blackfish on SeaWorld:
Investors in SeaWorld got soaked Wednesday as shares of the
embattled theme-park operator tumbled 33 percent erasing $832
million from shareholder portfolios. The company said it expects
revenue to decrease by up to 7 percent this year a drop greater than
Wall Street expected as the fallout from Blackfish, a documentary
last year about the alleged harm caused to orca whales in captivity,
started to hurt attendance. Last month, amid the Blackfish
controversy, Southwest Airlines announced it would end its 26-year
partnership with the Orlando, Fla., company. . . . Dennis Speigel,
president of International Theme Park Services, a consulting firm, said
the short-term investment focus of the private-equity giant likely hurt
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SeaWorld during a time it needed to shift its business strategy. They


didnt take the offensive soon enough on Blackfish, he told The Post.
An owner for whom this was the core focus may have addressed it
differently. . . . This snowball is getting larger and larger and it has to
be crushed by SeaWorld, Speigel said, alluding to the Blackfish
controversy.

5
6

175. These publications were not alone in their assessment of SeaWorlds

announcement. Far from it, as the following table demonstrates, SeaWorlds August

13, 2014 announcement was widely recognized as a long overdue admission that

Blackfish had negatively affected SeaWorlds business for some time.

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11

Source
Financial
Times

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17

Skift.com

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Times of San
Diego

Title
SeaWorld
Shares Hit as
Negative
Publicity
From Film
Hits Revenue

Quote
Date
Shares in SeaWorld tumbled 33 per cent 8/13/14
on Wednesday after the amusement park
group forecast a revenue decline of 6.7
per cent this year, driven in part by
negative publicity from a film criticising
the treatment of its captive killer
whales. The film Blackfish , released in
2013, spawned protests that the company
said particularly hit revenues at its San
Diego park.[T]his quarter marks the
first time management has mentioned
Blackfish-related issues in its earnings
results
SeaWorld
Shares of SeaWorld Entertainment were 8/13/14
Concedes
tanking August 13 after the theme park
Blackfish
company conceded that adverse publicity
Hurt
about restrictive California legislation,
Attendance in which comes on the heels of the Blackfish
Second
documentary,
negatively
impacted
Quarter
attendance.
SeaWorld
SeaWorlds stock (NYSE: SEAS) took 8/13/14
Stock Takes
a serious hit Wednesday as the
Dive as Park company admitted the PETA/Blackfish
Admits
protests have taken a toll on the
Blackfish
amusement parks bottom line. . . . The
Protests Hit
documentary Blackfish, which outlined
the Mark
activists concerns about killer whales
kept in captivity, along with a campaign
launched by PETA, the animal rights
group, against SeaWorld, helped drive
state lawmakers to consider banning
88
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3

IndieWire.co
m

Blackfish
Backlash
Hurts
SeaWorlds
Bottom Line

San Diego
Union
Tribune

SeaWorld
Stock
Plunges,
Blackfish
Blamed

New York
Times

Media
Scrutiny
Drags on
Earnings at
SeaWorld

The Daily
Beast

Whale
Mistreatment
Charges Sink
SeaWorld

CNBCs
Mad Money
with Jim
Cramer

The Mad
Dash:
SeaWorld
Sinks

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parks from using orcas in shows. The


legislation stalled, but the criticism
persists.
When Blackfish was released,
SeaWorld said the documentary wouldnt
hurt business, but clearly that hasnt been
the case. With all the talk of measuring
the impact of documentaries, in the case
of Blackfish, Gabriela Cowperthwaites
documentary about the danger of keeping
whales in captivity, the effect is clear:
SeaWorld reported today that its stock
has dropped, largely due to the film.
[SeaWorld] shares tumbled 32 percent
to $19.16 in mid-day New York trading
after falling to $19.30, the lowest since
they started trading in April 2013. Before
Wednesday, SeaWorld shares had
retreated 23 percent in a year following
the release of Blackfish. . . . The
company acknowledged for the first time
that pressure from animal-rights groups is
reducing attendance, said Barton
Crockett, an analyst at FBR & Co. . . .
SeaWorld is still reeling from the effects
of the negative media attention it has
received over its treatment of captive orca
whales. . . . The drop in stock price is the
latest indication of the damage inflicted
by the adverse coverage in the news
media. SeaWorld came under scrutiny
last year after the release of Blackfish, a
documentary that presents a harsh look at
killer whales in captivity.
SeaWorld Entertainment shares fell 33
percent on Wednesday, indicating that
allegations of animal mistreatment are
taking a financial toll. . . . Animal-rights
activists have been hitting SeaWorld hard
since Blackfish, a movie that accuses the
park of mistreating orca whales, came out
last year. For the first time, SeaWorld
executives admitted that the bad
publicity has hurt its bottom line,
rather than attribute the drop to ticket
price increases or holiday schedules as
they have in the past.
Its almost as if people were on strike.
Theyre not going to SeaWorld. This is
amazing. . . . Do we think it could be
because of a documentary? You know,

8/13/14

8/13/14

8/13/14

8/13/14

8/13/14

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Forbes

SeaWorld
Shares
Plummet As
Killer Whale
Protests Hurt
Parks

DailyMail.co
m

SeaWorlds
Profits Fall
$42MILLION
Below Wall
Streets
Expectations
After
Devastating
Blackfish
Documentary

International
Business
Times

Blackfish
Effect:
SeaWorld
Stock Plunges
After
Controversial
Film Sparks
Ethical
Debate

New York

SeaWorld

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this Blackfish documentarys been out


there for a long time. I have to tell you,
its gotta, yeah, its gotta play a role. I
mean, this is astoundingthe decline. . . .
The documentary had to have played a
big role.
Shares of amusement parks operator
SeaWorld fell drastically on Wednesday
morning after the company reported
disappointing earnings for the second
quarter. The cause: more fallout from
attention to SeaWorlds treatment of
orcas. . . . The 2013 hit documentary
Blackfish, which focused on the
captivity of one orca who killed three
people, shed light on the consequences of
keeping the animals in captivity. The
media attention has hurt SeaWorlds
bottom line.
Shares of SeaWorld Entertainment Inc.
(SEAS) fell Wednesday after the theme
park operator reported second-quarter
profit and sales that missed Wall Street
expectations and cut its outlook for the
year. The Orlando, Florida-based
company also said it believes attendance
during the period was hurt by negative
publicity surrounding its treatment of
killer whales, which are trained to
perform tricks. A documentary last year
called Blackfish suggested that the
companys treatment of the killer whales
provokes violent behavior from them,
which in turn has led to the death of
trainers.
SeaWorlds stock took a nosedive
Wednesday after the company reported
fewer
ticket
sales
and
lower
second-quarter earnings. . . . SeaWorld
Entertainment
Inc.
(NYSE:SEAS),
owned by the private-equity company
Blackstone, has downplayed the effect of
Blackfish, a film that blasted the park
for its treatment of orcas. SeaWorld
ascribed its 4.3 percent attendance drop
over the past year to bad weather,
competition with other theme parks and
changes to school schedules, but it
recognized the role of Blackfish in
recent protests against the park.
SeaWorld has a whale of a problem.

8/13/14

8/13/14

8/13/14

8/13/14

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Post

Stock Sinks
Over
Blackfish
Killer Whale
Outrage

Los Angeles
Times

S&P Cuts
SeaWorld
Credit Rating
Amid Orca
Controversy

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Washington
Post

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25
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The
Guardian

Shares
of
the
theme-park
operatorhome to beloved killer whale
Shamutanked more than 34 percent
Wednesday after the company slashed its
full-year forecast and second-quarter
results fell far short of expectations.
SeaWorld, owned by the private-equity
giant Blackstone, said attendance at its
parks has been hurt by the debate over its
treatment of captive orcas. . . The
company has been under fire from animal
activists who argue its wrong to keep
orcas for the amusement of audiences.
That message was hammered home in
last years Blackfish.

SeaWorld officials had previously 8/14/14


attributed lower attendance numbers to
bad weather, higher ticket prices and a
shift in the timing of Easter this year. But
SeaWorld conceded in its earnings
report Wednesday that negative
publicity over charges that it mistreats
its killer whales has hurt attendance.
The criticism of SeaWorld gained
momentum last year with the release of a
documentary, Blackfish, that accused
the theme park company of mistreating
the orcas featured in its shows.
Blackfish
The 2013 documentary suggests the 8/14/14
Takes Its
theme parks treatment of orcas, also
Toll:
called killer whales, prompted gruesome
SeaWorld
attacks. Since its release last year, it has
Shares Take a evoked backlash from animal rights
Nose-Dive
advocates, corporations and lawmakers.
It has moved legislators to attempt to ban
their captivity, companies to pull out of
partnerships and researchers to study
large ocean animals. Now, SeaWorld is
paying the price. Crediting animal
activism, the company acknowledged for
the first time Wednesday the fallout that
followed the films release, admitting
attendance issues in San Diego, according
to CNN Money. Although the company
did not name Blackfish, it stated
SeaWorld has been hurt by negative
media attention.
SeaWorld
Shares in the amusement park SeaWorld 8/14/14
Shares
fell 33% after a 6-7% decline in the
Tumble 33% companys revenues was forecast with
91
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Following
falling attendances driven in part by
Blackfish
the negative publicity surrounding the
Documentary documentary film Blackfish. . . . The
director
of
Blackfish,
Gabriela
Cowperthwaite, backed a recent motion
by a member of Californias state
assembly to outlaw orca performance. In
April the vote was delayed so that a
period of review, potentially lasting as
long as 18 months, can get under way.
James Atchison, SeaWorld chief
executive and president, acknowledged
the impact of the bill on the companys
bottom line.
SeaWorld
SeaWorld is still feeling the Blackfish
credit
rating,
effect as the companys shares fell a
8/14/14
Chicago
stocks
whopping
22
percent
over
the
past
year,
Tribune
plummet in
down 33 percent on Wednesday alone,
response to
when it reported lackluster second quarter
Blackfish
earnings at the close of the regular trading
day.
Entertainmen SeaWorld
For months after the release of 8/14/14
t Weekly
Says
Blackfish, a documentary about the
Backlash
negligent treatment of orca whales in
Following
captivity, SeaWorld denied allegations
Blackfish
that negative press was affecting earnings
Has Affected or attendance. Now, as the company
Its Revenue
failed to hit an expected revenue mark in
its second quarter, its admitting that
the backlash, likely fueled in part by
Blackfish, is taking its toll. . . . Though
the motion [for legislation in California]
was tabled this April as lawmakers
decided to wait on the results of a further
study, SeaWorlds recognition that
Blackfish has affected its business is a
significant change in the companys PR.
ProjectCastin SeaWorld
Since the release of Blackfish, a 8/14/14
g.com
Finally
documentary critical of the treatment of
Admits That
Orcas at SeaWorld many people have
the Blackfish condemned, boycotted, and downright
Movie Has
despised the theme park attraction.
Hurt the
Months following the release of
Company
Blackfish, SeaWorld went on a Public
Relations campaign discrediting the
documentary. Furthermore, SeaWorld
execs argued that despite the bad PR for
Blackfish, people are still interested in
attending the theme park. However,
SeaWorld announced on Wednesday
that the documentary Blackfish had
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negatively affected the amusement


park sales and revenue.
After
SeaWorld Entertainment has suffered
Blackfish,
financially since the release of the 2013 8/19/14
Washington
SeaWorld
documentary Blackfish that accused the
Post
hurt
theme park of mistreating its main
financially
attraction killer whales. The company
but keeps up last week reported second-quarter losses,
political
its stock plummeted and its Standard &
spending
Poors credit rating was downgraded.
And for the first time publicly,
SeaWorld Entertainment attributed its
financial woes, at least in part, to the
bad publicity from the film.
CNN Money SeaWorld
SeaWorld has come under fire after the 8/19/14
Stock Gets
airing of Blackfish last year. . . . The
Soaked,
film has led to proposed legislation in
Plunges 33% California, home of SeaWorlds San
Diego park, to ban the holding of
so-called killer whales in captivity. . . .
In its earnings release Wednesday,
SeaWorld acknowledged that attendance
in San Diego was hurt by recent media
attention around the legislation. It was the
first time the company actually admitted
attendance problems because of animal
activism, said Barton Crockett, an analyst
at FBR Capital Markets.
Wayne
A Whale of a First came the companys August 13th 8/28/14
Pacelle,
Reaction to
revelations
concerning
its
President and Blackfish and underwhelming financial performance
CEO of The
SeaWorld
over the course of 2014, a year in which
Humane
SeaWorlds credit rating and stock value
Society of the
plummeted as investors lost faith with the
United States
company in what analysts are calling the
Blackfish effect. . . . The year also saw
more than a dozen scheduled musical acts
and its longtime corporate partner,
Southwest Airlines, abandon SeaWorld
and leave it without that support and
those cultural moorings. . . . The fraying
of SeaWorlds business model will one
day be the subject of case studies in
business schools and schools of
communications. For now, its providing
one of the most vivid examples in the turn
of fortune for a major corporation that is
on the wrong side of public opinion on a
long-standing humane concern. In just a
few short years, the company has lost its
feel-good cachet, seen its value
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National
Public Radio

downgraded, mishandled a tragic incident


by re-victimizing Dawn Brancheau, and
maintained against all available evidence
that its revenue model and business
prospects were not being affected by
swelling
public
skepticism
and
rejection.
SeaWorld
[SeaWorld], which has parks in San 9/11/14
Hopes New
Diego, San Antonio and Orlando, Fla.,
Orca
saw its attendance drop in recent months.
Habitats Will The company blames that, in part, on
Stem a Tide of fallout from Blackfish, a documentary
Criticism
film that's critical of SeaWorld's
treatment of its captive killer whales.

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176. As all of these industry and financial market observers noted, SeaWorlds
announcement was understood by the market to be an admission by the Company had
admitted for the first time that Blackfish had negatively impacted both attendance
and revenue throughout the Class Period.
177. Atchison later conceded that SeaWorld should have responded to
Blackfish earlier in an August 20, 2014 interview with the Orlando Sentinel, entitled
SeaWorld CEO: We should have done more to fight Blackfish. According to the
Orlando Sentinel, Atchison told the paper that SeaWorld . . . Should have done more
to counter the anti-captivity documentary Blackfish and in the future will promote its
rescue and conservation efforts more aggressively. Atchison went on to explain [in]
hindsight, yeah we probably [should have come out more forcefully, sooner, against
Blackfish], because the movie was so misleading, so full of falsehoods and so unfair in
its framing and characterizing of what we do. . . . Its a delicate balance though,
because one of the worst things you can do is to turn it into the movie SeaWorld
doesnt want you to see. Undoubtedly, SeaWorld was on notice and aware that
Blackfish was impacting its business long before it finally admitted such on August 13,
2014. However, as Atchisons own explanation makes clear, despite this knowledge,

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SeaWorlds chosen strategy was to ignore Blackfish and deny its credibilityboth to

the public and investors.

178. After the Company disclosed that Blackfish-related attendance declines

had caused weak revenues and a downward revision of guidance, SeaWorlds common

stock price plunged, as reported by industry, business and financial press.

example. For example, the Wall Street Journals online site, WSJ Blog, reported

during trading on August 13, 2014 that SeaWorlds common stock price was

tank[ing] on news that protests and negative publicity took a significant toll on the

companys second-quarter results. The report noted that SeaWorld had reported

For

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179. Dow Jones also published a wire during trading on August 13, 2014,

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reporting that SeaWorld had slashed its revenue guidance for the year as the

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theme-park operator reported underwhelming results and attendance for the second

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quarter. Shares of the companywhich acknowledged that media attention about

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legislation in California to end the orca shows weighed on attendancefell nearly

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30% in morning trading as its results for the period missed analysts expectations by a

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wide margin.

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180. 176. This admission was of major significance because Blackfish and the

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fallout surrounding it were tied to how the public viewed SeaWorld. As Bloomberg

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put it in an article publishedreported on November 20, 2014, SeaWorlds attendance

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was declining because of changing perceptions of killer whale shows would

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represent and Blackfish has gone from being a public relations problem to a

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potentially catastrophic threat to a $1.4 billion-a-year business.

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SeaWorlds brand and reputation would constitute a different and direr threat to its

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ability to generate future earnings than issues stemming from transitory effects of

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weather or the holiday calendar because harm to brand or reputation risks a structural

Damage to

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shift in consumer taste away from a companys existing product.

Accordingly,

investment analysts focused on the health of the Companys brand during the 2Q14

Earnings Call. For example, Robert Fishman of MoffettNathanson LLC pointedly

asked if SeaWorld had sought to measure how its brand is perceived today versus

maybe a year ago?

impacting park attendance, was very bad news for the Company in the eyes of

investors.

the impact of Blackfish proved true. Ultimately, Blackfish and the ensuing shift in

public opinion regarding SeaWorlds treatment of orcas led to a historic change in

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SeaWorlds business model. As detailed below, on March 17, 2016, SeaWorld stated

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that it would end all orca breeding programs and phase out the Companys theatrical

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orca whale trick shows. See 199-203.

The admission that Blackfish-related issues were, in fact,

Indeed, the predictions of Bloomberg and other commentators regarding

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181. Understanding the significance of SeaWorlds admission on August 13,

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2014,Accordingly, investment analysts focused on the health of the Companys brand

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during the 2Q14 Earnings Call. For example, Robert Fishman of MoffettNathanson

16

LLC pointedly asked if SeaWorld had sought to measure how its brand is perceived

17

today versus maybe a year ago? The admission that Blackfish-related issues were, in

18

fact, impacting park attendance, was very bad news for the Company in the eyes of

19

investors.

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182. 177. In response to the August 13, 2014 disclosure, SeaWorlds common

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stock price declined a staggering $9.25 per share, or nearly 33%, from a closing price

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of $28.15 per share on August 12, 2014, to a closing price of $18.90 per share on

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August 13, 2014. This decline eliminated more than $830 million from the Companys

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market capitalization in just one day.

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G.

The Aftermath Of The Fraud and the Continued Impact of Blackfish

183. 178. On August 14, 2014, S&P lowered SeaWorlds corporate credit

rating to BB- from BB, pushing the rating further below investment grade, also known

as junk status. The negative outlook reflected S&Ps expectation that SeaWorld still

faced significant challenges regarding reputational risk and potential improvements

in operating performance beyond 2014. Additionally, S&P cited negative media

reports that have specifically targeted the companys use of orca whales for

entertainment purposes as contributing to lower attendance and spending at the

parks as a reason for the downgrade.

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184. 179. As discussed above, SeaWorld suffered new blows in the following

11

months as additional corporate sponsors and marketing partners cut ties with the

12

Company. See 153-161.150-58.

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185. 180. Reports of grassroots protests and school groups organizing to

14

prevent school sponsored associations with SeaWorld continued to arise, threatening

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to further erode gate attendance. On November 6, 2014, it was reported that California

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State University Long Beach students planned to stage a protest to demand that the

17

university stop selling discounted SeaWorld tickets due to the theme park's alleged

18

mistreatment of killer whales. The rally came after California State University Long

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Beach Associated Students Inc. passed a resolution to end the sale of SeaWorld tickets

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in the University Student Union, which the trustee board for the student union

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ultimately moved to support.

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186. 181. Following the announcement of extremely poor attendance figures

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and earnings in the third quarter earnings call on November 12, 2014, Atchison

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reiterated his commentary from the 2Q14 Earnings Call regarding negative attendance

25

trends, explaining that the decline resulted from a combination of factors, including

26

negative media attention in California. The declining attendance trend was ongoing
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and Atchison noted that [c]onsistent with the update we provided in August, the

attendance trends the Company experienced in the latter part of the second quarter

continued into the third quarter. Referring to decreased attendance at SeaWorlds

Orlando and San Diego parks, he admitted the Company was not happy with it or

accepting of it, but we're seeing similar trends through those two parks, as has been

reported previously in our Q2 numbers. Alluding to efforts to repair the damage

Blackfish had caused to SeaWorlds brand, he stated, [o]n the reputation side, we have

introduced a number of aggressive and proactive initiatives and campaigns to make

sure the truth is being told, address public perceptions, and raise and protect brand

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awareness.

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187. 182. Following that call, Atchison granted wide-ranging access to a

12

Bloomberg Business reporter for a November 20, 2014 piece entitled, Saving

13

SeaWorld, in which he discussed the negative impact of Blackfish on SeaWorlds

14

reputation and ticket sales. Bloomberg reported that, SeaWorld acknowledges that

15

ticket sales have declined because of changing perceptions of killer whale shows and

16

noted that [f]or SeaWorld, whose logo features an orcas dorsal fin, Blackfish has

17

gone from being a public relations problem to a potentially catastrophic threat to a $1.4

18

billion-a-year business. Commenting on the crucial importance of SeaWorlds killer

19

whale shows to SeaWorlds business model, Atchison admitted, Our killer whales,

20

our killer whale program, and all of our animals are emblematic of the whole brand.

21

He acknowledged that Blackfish had long been on the Companys radar and that he

22

was aware of the notable momentum the film gained when CNN started airing

23

it[r]epeatedly, but that the Company had struggled to find an effective approach in

24

responding to widespread criticism and activism generated by the film.

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188. 183. Weeks later, on December 11, 2014, the Daily Mail reported that

Atchison had resigned following low visitor numbers in the wake of a 2013 film,

Blackfish, which criticized [the Companys treatment] of killer whales. As reported

by the Tampa Bay Times that same day, however, a SeaWorld spokesman would not

say whether Atchisons decision was voluntary. According to an analyst with Pacific

Asset Management, [SeaWorlds] board was likely looking for someone who can

better handle SeaWorlds public-relations problems. Also on December 11, 2014, the

Wall Street Journal confirmed that Atchison would depart as chief executive and

that SeaWorld would unveil a restructuring plan that comes as it has faced

10

controversy over its treatment of killer whalescontroversy over its treatment of killer

11

whales.

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189. The following day, the Washington Post, reported that Atchisons

13

departure comes on the heels of what has been a terrible year for the company[] in

14

which revenue fell by more than seven percent, and its attendance dropped by nearly

15

five percent. The paper went on to note, [t]he changing of the guard is likely the

16

result of something that occurred in July 2013: namely the release of the documentary

17

Blackfish. A recent Orlando Sentinel report similarly linked Atchisons departure

18

to Blackfish, stating that Atchison resign[ed] as CEO in 2014 amid financial struggles

19

and controversy over the documentary Blackfish.

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190. CW-5 also stated that she believed Atchisons response to Blackfish cost

21

the CEO his job. She believed Atchisons strategy to ignore Blackfish and wait for it to

22

go away did not work and that it was apparent that SeaWorld did not have a

23

contingency plan in the event that ignoring Blackfish did not work.

24

191. 184. Days later, SeaWorld announced plans to cut about 300 jobs as

25

part of the $50 million cost-saving restructuring plan it had announced in its 3Q14

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report. CW-5 attributed this layoff as a large impact from Blackfish. Indeed, CW-5

explained that as the 2015 budget was being compiled in the last months of 2014,

budgets were repeatedly returned with requests to cut more and more expenses.

Ultimately, there were no other costs to cut except labor, resulting in the layoff. In

reporting on this development, the Wall Street Journal explained that the cuts occurred

as SeaWorld continues to deal with the backlash from animal-rights activists and

consumers about its treatment of animals, especially killer whales, and noted that,

[t]he documentary Blackfish, which has been screened in cinemas and broadcast

multiple times by CNN, raised these criticisms to a higher level of public awareness,

10

harming the companys financial results.

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192. 185. CBS reported on December 12, 2014 that Blackfish is widely

12

considered to be at least partly responsible for SeaWorlds attendance drop. On

13

January 6, 2015, Fortune likewise concluded that SeaWorld has had a bad few years,

14

with park attendance down and the companys reputation taking a beating due to the

15

controversial anti-SeaWorld documentary Blackfish. Similarly, on February 26,

16

2015, the Orlando Sentinel noted SeaWorlds attendance and stock value have

17

declined, in part because of negative publicity over its killer whales. The issue went

18

mainstream after the 2013 documentary Blackfish.

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20

DEFENDANTS MATERIALLY FALSE AND MISLEADING


V.
STATEMENTS AND OMISSIONS OF MATERIAL FACT
EXCHANGE ACT CLAIMS

21

A.

22

186. On April 18, 2013 SeaWorld filed with the SEC its Offering Materials in

23

April 18, 2013 IPO Offering Materials

connection with the Companys IPO.

24

187. In the Risk Factor section of the IPO Offering Materials, SeaWorld

25

purported to warn investors that Blackfish and the negative publicity arising from the

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film aimed at SeaWorld may potentially harm the Companys reputation,

attendance, and business at some point in the future:

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An accident or an injury at any of our theme parks or at theme parks


operated by competitors, particularly an accident or an injury involving
the safety of guests and employees, that receives media attention, is the
topic of a book, film, documentary or is otherwise the subject of public
discussions, may harm our brands or reputation, cause a loss of
consumer confidence in the Company, reduce attendance at our theme
parks and negatively impact our results of operations. Such incidents
have occurred in the past and may occur in the future.
****

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[I]n February 2010, a trainer was killed while engaged in an interaction


with a killer whale.This incident has also been the subject of
significant media attention, including television and newspaper
coverage, a documentary and a book, as well as discussions in social
media. This incident and similar events that may occur in the future
may harm our reputation, reduce attendance and negatively impact
our business, financial condition and results of operations.

16

193. Unsurprisingly, when SeaWorld disclosed its full year financial

17

information on February 27, 2015, it reported an overall decline in attendance for

18

2014. Specifically, SeaWorlds 2014 10-K reported a 4.2% decline in attendance in

19

2014 as compared to 2013. The Companys net income also dropped from $51.9

20

million in 2013 to $49.9 million in 2014. Acknowledging the impact of Blackfish,

21

SeaWorld primarily attributed the decline in attendance to negative media attention in

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California and a challenging competitive environment in Florida.

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194. In an effort to reform its image and boost flailing attendance rates,

24

SeaWorld made several strategic moves in early 2015. First, on March 19, 2015,

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SeaWorld announced that Joel Manby had been appointed as President and Chief

26

Executive Officer, effective April 7, 2015. SeaWorld touted Manbys proven track
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record in the entertainment and theme park industries [e]ven in the most challenging

business environments[.]

195. Second, the Company launched a new ad campaign aimed at restoring its

image. According to the Orlando Sentinel, Interim CEO DAlessandro told analysts

on February 26, 2015 the Company was engaging in a targeted marketing campaign

starting April 1 [that] will focus on consumers who feel ambivalent about SeaWorld.

As with its prior campaigns, the focus of the new campaign was to refute the claims

made by Blackfish and animal rights activists. For example, according to NPR, in one

video, SeaWorlds head veterinarian, Chris Dold, told viewers So dont believe what

10

PETA and Blackfish are saying. Our killer whales live lives just as long as killer

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whales in the wild.

12

196. During this same time, former SeaWorld trainer John Hargrove, who was

13

featured in Blackfish, released a book, Beneath the Surface: Killer Whales, SeaWorld,

14

and the Truth Beyond Blackfish, which was harshly critical of SeaWorlds treatment

15

of its animals. SeaWorld took the same aggressive tack with Hargrove that it had with

16

Blackfish. In an email to ABC News, Jacobs accused Hargrove of repeatedly making

17

statements that were misleading, false or in conflict with statements [Hargrove] has

18

made previously. And, within days of the book release, SeaWorld attempted to

19

discredit Hargrove by sending reporters a five-year-old video in which Hargrove was

20

under the influence of alcohol and used derogatory language.

21

197. All told, the Guardian reported on August 6, 2015, that SeaWorld spent

22

more than $10 million on its marketing blitz. Nevertheless, attendance and revenue

23

continued to fall. SeaWorld reported in an 8-K released on August 6, 2015, that its

24

second quarter net income had dropped from $37.4 million in 2014 to $5.8 million in

25

2015, an 84% decrease. Attendance in 2Q15 was also down by more than 100,000

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from attendance in 2Q14.

SeaWorld attributed the decline to continued brand

challenges in California as well as the timing of Easter and record rainfall in Texas.

198. Meanwhile, commentators continued to attribute SeaWorlds attendance

declines to Blackfish. The Guardian reported on August 6, 2015, [f]ollowing the

release of the documentary, attendance collapsed and the company lost more than

half its market value on Wall Street and its formed CEO was forced out. That same

day, CBS News concluded SeaWorld has been trying to recover from the 2013

documentary film Blackfish that suggested the treatment of captive orcas provokes

violent behavior. Park attendance dropped after the release of the documentary.

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199. In an effort to stem public backlash against its killer whale program,

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SeaWorld proposed a $100 million program to double the size of its orca tanks at its

12

San Diego Park. On October 11, 2015, the California Coastal Commission approved

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SeaWorlds plan under the condition that SeaWorld end its breeding program in

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California. Media attributed the California Coastal Commissions decision to the

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continued public scrutiny of SeaWorlds killer whale program in the wake of

16

Blackfish. For example, on October 11, CNN reported the decision followed hours of

17

impassioned speeches by hundreds of supporters and opponents of the project noting

18

that interest in orcas, and the conditions they live under at SeaWorld, rose after the

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2013 documentary Blackfish aired on CNN. The same day, the Voice of San Diego

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wrote [c]laims in the movie [Blackfish]which [SeaWorld] deniesinspired a

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recent state Coastal Commission decision to force the company to slowly phase out its

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killer whale program[.]

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25

H.

SeaWorlds About Face

200. On March 17, 2016, SeaWorld announced a dramatic and historic shift in
its business model, stating that it would end all orca breeding programs and phase out

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the Companys theatrical orca whale trick shows. Reporting on the announcement,

ABC News noted, Manby . . . acknowledged that Blackfish did have an impact,

saying whether its a movie, whether its customers riding us, there is no doubt the

mindset of society has changed. I think we have to change with it. According to the

Wall Street Journal, on an analyst call related to the announcement, Manby

acknowledged, [t]heres been a ton of pressure.People today and millennials and

moms and dads want vacations with meaning, and they are willing to support

organizations that have it.

201. Manby cast SeaWorlds dramatic operational shift as a necessary

10

response to public opinion. Indeed, while Manby did not originally intend to end the

11

killer whale program at SeaWorld, after reviewing attendance trends and public

12

opinion research and talking to fellow business leaders, he determined it was the most

13

prudent move for the Company. On April 20, 2016, the Orlando Sentinel reported

14

Manby made the decision to end the killer whale program because he saw twin losing

15

battles looming ahead one against declining attendance, another against increased

16

legislation targeting orcas in captivity, noting that SeaWorld has been fighting both

17

after the 2010 death of a trainer and the subsequent anti-captivity documentary

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Blackfish. As Manby told Bloomberg on May 2, 2016, several things convinced

19

SeaWorld to end the killer whale program: Customer feedback, conversations with

20

other business people and a decision by the California Coastal Commission to prohibit

21

orca breeding in the state if SeaWorld pursued a plan to expand its whale habitat.

22

Manby also acknowledged in New York Magazine that his decision was spurred by the

23

fact that SeaWorld had lost the publics trust, stating I mean, we can say that what

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Blackfish was saying is not true, and we have facts to back it up, but if were the only

25

ones saying it, were not going to have the credibility to win that.

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202. In other words, Manby and SeaWorld could not continue to deny the

profound impact of Blackfish or ignore the Companys own data regarding public

sentiment, as his predecessor had done, and remain a viable business.

according to the Orlando Sentinel, Manby told fans in an online forum I understand

you may feel betrayed . . . [b]ut . . . the data showed, and trends showed, it was a

SeaWorld without whales or it would probably be a world without SeaWorld.

Manby also told Forbes [t]he world is moving in a different direction, . . . . Society is

changing and moving in a different direction, and we needed to get ahead of it. Our

research showed it would be a losing battle [to continue the shows in the face of this

10

Indeed,

rising tide of hostility].

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203. 188. Defendants statement that Blackfish may have a negative effect

12

on future attendance and other key Company metrics was materially false and

13

misleading because it characterized as contingent or speculative something SeaWorld

14

knew was already occurring or that was reasonably projected to occur. As thoroughly

15

detailed above, SeaWorlds specific actions in response to Blackfish and the

16

information available to Defendants concerning the publics perception of the

17

Company and the film demonstrate as much. As early as February 27, 2013, SeaWorld

18

knew the threat created by Blackfish was real, and, as a result of SEC comments,

19

submitted revised IPO Offering Materials, which included the purported warning set

20

forth above. In particular, SeaWorlds consumer research found that the Companys

21

breeding ban led to improved public perception of the Company and an increased

22

likelihood of people to visit the SeaWorld parks. For example, in a March 17, 2016

23

presentation to investors, Manby cited detailed third-party consumer studies of several

24

demographic groups by market that the Company commissioned to test the

25

announcement of SeaWorlds new business model. The results of the study found,

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inter alia, favorability of opinions about SeaWorld improved by 11-27 points and

consideration of those likely to visit SeaWorld improved 5-17 points. In addition,

Manby told the San Diego Tribune:

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We tested the announcement in disguise before we made it, and the


actual results in the marketplace were exactly the same. Out of every
eight people, seven were very supportive or extremely supportive. This
was the general population, and that was who we were going after.
And the willingness of people to visit our parks went up dramatically as
well. Out of every five people, four are more likely to come to our parks
now. Those are incredible statistics.

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204. Tellingly, SeaWorld acknowledged that its new business model would
significantly increase attendance and revenue. According to the Wall Street Journal,
SeaWorld expects to save $15 million in reputational-management costs, and it sees
attendance rising by 380,000 to 940,000 in the next three to five years. SeaWorld
also expects revenue to increase by $20 million to $80 million during the same time
frame.

According to PETA Vice President Lisa Lange, [a] corporation like

SeaWorld only changes because its financially prudent to do so, and its financially
prudent to do so because people just arent going and their stocks are falling.
205. Once again, the national media noted the impact of Blackfish on
SeaWorlds surprising shift. For example, the Washington Post reported that after
years of defiance, SeaWorld is finally letting go of its killer whale program because
the domino effect that followed Blackfish has simply proven too crippling to
ignore. Likewise, NPR commented that since Blackfish put SeaWorlds treatment of
its whales in the spotlight, in a steady campaign on social media, critics have
demanded SeaWorld end its orca breeding program. And, the Motley Fool reported
on March 22, 2016, SeaWorld has been out of favor since the moment it went public
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at $27 in 2013, and remains a busted IPO, but thats not unexpected given the 2013

and 2014 slides in attendance as a result of fallout from the Blackfish

documentary. The financial blog went on to note [a]ttendance inched slightly higher

last year, but revenue still retreated as SeaWorld has to discount admissions to drum

up park guests. Indeed, nearly every media report on the announcement mentioned

Blackfish as a factor precipitating SeaWorlds changed business model.

206. Following SeaWorlds announcement, investors and experts questioned

why the Company took so long to come to this decision. Activist Investor Greg Taxin

(Taxin), whose Luma Asset Management has a 4% stake in SeaWorld commented:

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We believe the company took far too long to respond effectively to the
challenge of Blackfish and that the board bears responsibility for
the delayed response, ineffective response for several years that has
cost shareholders significant value. We just think it would be useful to
have new people on the board who have proven extremely able in this
industry to help navigate these future issues that may arise.

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207. Taxin also told Bloomberg News on March 21, 2016, [t]he board at
SeaWorld was asleep for many, many years, and we think it needs to change, and
that [t]he directors of the Orlando, Florida-based company dont have a background
in theme parks and lack experience in areas we think are critical. Likewise, the
San-Diego Union-Tribune, noted on March 17, 2016, that Manby had taken over
following the resignation of Atchison who had presided over declines in revenue and
attendance[,] and that SeaWorld observers had faulted the company for doing too
little to blunt the ongoing criticism. The report also noted theme park consultant
Dennis Speigels recognition that Manbys move away from killer whale shows as
prudent business. Speigel told the San-Diego Union Tribune,

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They have to re-invent their product. The public has spoken, and in that
regard theyre reacting to it. I think this will improve their stock value
and future attendance and revenues. The SeaWorld in 10 years will not
be the SeaWorld we know today, and make no mistake, this is all
emanating from Joel Manbys management position.

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208. In response to shareholder feedback and an apparent recognition of the


inept response of its board to Blackfish, on April 15, 2016, SeaWorld announced the
addition of two independent, veteran theme park industry executives Ron Benison
and Donald Robinson to its Board of Directors. The new directors were brought on
to replace outgoing board members, Joe Baratta, who is also the Global Head of
Private Equity, and former CEO, Atchison, who remained on the board after his tenure
as CEO. Atchison will remain a consultant with SeaWorld, earning $620,000 per year
through 2017, according to his current consulting agreement with the Company.

14

DEFENDANTS MATERIALLY FALSE AND MISLEADING


STATEMENTS AND OMISSIONS OF MATERIAL FACT

15

A.

August 29, 2013 SeaWorlds Statements To The Media

209.

On August 29, 2013, the first day of the Class Period, the Los Angeles

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V.

Times called into question the Companys representation to investors that the 6%
decline in attendance across SeaWorld-owned parks over the first half of 2013 was
attributable to bad weather, suggestingand suggested that bad publicity stemming from
Blackfish may have played a role. In response, Jacobs, speaking on behalf of the
Company, flatly denied the suggestion that Blackfish or the public backlash spurred on
by the film was hurting attendance, stating that Blackfish has had no attendance
impact. That same day again denying that negative publicity from Blackfish was
impacting the gates at SeaWorlds-owneds parks Jacobs told Bloomberg that [w]e
[SeaWorld] can attribute no attendance impact at all to the movie.

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210. Jacobs statements on behalf of the Company were express and explicit

denials of any Blackfish-related impact on SeaWorlds attendance, whatsoever. Up

until August 29, 2013, SeaWorld had refused to publicly acknowledge Blackfish by

name and had only tacitly referred to any possible effect Blackfish may or might

have on its attendance in veiled, contingent fashion. However, Jacobs statements

affirmed to the investing public that Blackfish definitively had no attendance impact

and that SeaWorld attribute[d] no attendance impact at all to the movie.

211. 189. In addition, the statement set forth in 187Yet, each of Jacobs

August 29, 2013 statements made on behalf of the Company set forth above in 208

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was materially false and misleading because at or around the time of the IPO, the

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intense negative nationwide public attention and reaction to the film was apparent and

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already impacting the publics intent to visit SeaWorlds parks, as demonstrated by the

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following facts:by the time of each statement:

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a)

At or around the time of the IPO, CW-1 stated that by the April
2013 IPO there were at least a couple hundred anti-SeaWorld posts
a day on Twitter, many of which mentioned Blackfish and also
hijacked SeaWorlds hashtags in order to reach existing SeaWorld
fans. SeaWorld had internal discussions concerning these posts
and potential responses.

b)

CW-3 recalled that during the time frame from Blackfishs


premiere in January 2013 to April 2013, attendance at SeaWorld
San Diego was tanking, down approximately 30% from the
budgeted attendance. CW-4 likewise stated that there was a
noticeable dip in attendance following the premiere, which
continued throughout the Class Period.

c)

According to CW-2, CW-3 and CW-4, SeaWorld held ECMs


approximately monthly at parks for all employees. At such
meetings, attendance was discussed. Moreover, according to
former SeaWorld employee, Sarah Fischbeck, SeaWorld held a
collective meeting before [Blackfish] came out telling [SeaWorld

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employees] to say it was fake, and otherwise instructing SeaWorld


employees how to respond to Blackfish. According to CW-2,
CW-3 and CW-4, there were several instances in 2013 when
Blackfish was discussed. According to CW-2, in one such instance,
the San Antonio parks general manager tried to boost morale by
expressing this too shall pass, indicating that Blackfish was, in
fact, plaguing the Company long before Jacobs August 2013
statements. CW-2 stated that Atchison attended one such meeting
and specifically discussed Blackfish. CW-4 recalled that these
meetings would typically be put together when Atchison was in
town.

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d)

Immediately following the premiere of Blackfish at Sundance in


January 2013, PETA implemented a devastating public relations
campaign related to Blackfish, which urged consumers and
businesses to boycott the Companys parks. Among other things,
PETA launched www.seaworldofhurt.com a website which
discussed Blackfish, attacked SeaWorlds treatment of its captured
animals, and sought to instigate changes in the Companys core
business model and attractions.

e) By January 22, 2013 three months prior to the IPO Blackfish was
certain to reach a larger, national audience in short order, as publications
such as the Chicago Tribune reported that CNN and Magnolia Pictures
had partnered to acquire the domestic rights to Blackfish, and that
Magnolia planned a summer 2013 theatrical release followed by a
domestic broadcast premiere on CNN.
f) At odds with SeaWorlds representation in April 2013 that Blackfish
may negatively impact the Company, on January 23, 2013. Almost
immediately following the films showing at Sundance, SeaWorld began
an extensive nationwide public relations campaign in an attempt to
counteract the films predictable effect on public opinion outrage at the
practices reflected in the film, and unwillingness to attend the Companys
parks.

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190. Thus, it is neither plausible nor, in fact, possible, that despite this intense

negative nationwide public attention and reaction to the film, Blackfish was not yet

having any impact on attendance or revenues at SeaWorld at the time of the IPO.

B.

191. On May 23, 2013, SeaWorld filed its 1Q13 Form 10-Q, which was signed

by Heaney and Swanson. The same statements set forth above in 187 purporting to

warn investors of risks that may or could negatively impact the Companys results

of operations, including attendance, were specifically incorporated by reference within

the 1Q13 Form 10-Q, and were materially false and misleading for the reasons set forth

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May 23, 2013 1Q13 Form 10-Q

above in 188-89.

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C.

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192. On August 13, 2013, SeaWorld: (i) filed with the SEC the Companys

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2Q13 Form 10-Q, which was signed by Heaney and Swanson; (ii) issued the 2Q13

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Press Release; and (iii) held the Companys 2Q13 Earnings Call, in which Atchison

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and Heaney participated on behalf of SeaWorld.

August 13, 2013 2Q13 Form 10-Q, Press Release And Earnings Call

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193. The same statements set forth above in 187 purporting to warn investors

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of certain risks that may or could negatively impact the Companys results of

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operations, including attendance, were specifically incorporated by reference within

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the 2Q13 Form 10-Q, and were materially false and misleading for the reasons set forth

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above in 188-89 and below in 199.

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194. In the 2Q13 Press Release, among other things, SeaWorld announced that

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attendance for first half of 2013 declined by 6% compared to the same period in 2012

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from approximately 10.7 to 10.1 million guests. The Company attributed the drop in

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attendance in its entirety to three discrete factors. These factors did not include

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Blackfish:

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The most significant portion of the decline was an expected result of


new pricing and yield management strategies, which reduced
attendance but increased total revenue per capita. The next largest
portion of the decline was a result of unexpected adverse weather
conditions at the Companys Florida and Virginia parks during the
second quarter and at all but one of the Companys park locations in the
month of June. The remainder of the decline was a result of the
unfavorable timing of Easter on March 31 which caused an overlap
with the spring break holiday period for schools in many of the
Companys key markets.

195. The Company further represented that attendance in the second quarter

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of 2013 was impacted by the same issues as outlined in the year-to-date results with an

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additional impact of attendance shifting out of the second quarter into the first quarter

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due to the timing of Easter. Accordingly, SeaWorld reported a 9.5% decline in

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second quarter attendance, dropping from approximately 7.2 million in 2012 to 6.6

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million guests in 2013.

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196. Likewise, SeaWorlds 2Q13 Form 10-Q represented that:


Attendance in the quarter decreased primarily due to the timing and
compression of Easter in 2013 along with the impact of adverse
weather conditions particularly at our Florida and Virginia parks during
the second quarter of 2013. These weather conditions also impacted all
but one of our park locations in the month of June. Attendance also
declined due to the expected impact of new pricing and yield
management strategies.
197. In the 2Q13 Press Release, Atchison also attributed the 9.5% attendance
decline to adverse weather and the timing of the holidays apportioning none of the
decline to Blackfish stating: We are pleased with our first half results particularly in
light of a challenging second quarter due to the unfavorable timing of Easter and
adverse weather conditions at many of our parks. Atchison further stated: While

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over the long term these weather effects tend to even out, we were impacted much

more than normal during the second quarter by these adverse weather conditions.

198. Defendants, in other words, stated that the entire steep decline in

attendance was attributable to the vagaries of weather, how the holiday calendar had

coincided with the Companys fiscal quarter and the expected impact of new [i.e.,

increased] pricing.

attendance decline was caused by negative public response to Blackfish, a factor that

would represent a more persistent, structural risk to the Companys attendance and

revenue dynamic, to the extent people and corporate partners were demonstrating an

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Defendants thus omitted to acknowledge that any of the

unwillingness to spend money at SeaWorld, or rejecting the Companys brand.

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199. In addition to the reasons set forth above in 188-89 and 199, the

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following facts underscore that each of Defendants statements set forth above in

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194-98 omitting that Blackfish was impacting the Company and responsible, at least

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in some part, for the decline in SeaWorlds 2Q13 and first half 2013 attendance, was

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materially false and misleading:


a) As reported by TIME and other publications, all of the major
e)
theme parks in SeaWorlds geographic locations, including Disney
and Universal, attained comparable, increased or record attendance
figures after they too hiked ticket prices in May or June 2013,
consistent with the annual tradition. See 128-32.125-29.

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f)

b) As reported by Bloomberg on May 7, 2013, attendance at


Disneys domestic parks rose 8% percent in the same quarter, as
compared to SeaWorlds 9.59% decline, notwithstanding the fact
that Disneys primary U.S.-based parks are located in the same
geographic markets as SeaWorlds Orlando, Tampa and San Diego
parks and therefore operated under the same weather conditions
(and, of course, holiday and school schedules). Moreover,
historical data confirms that attendance at SeaWorld-branded parks
and Disney and Universal parks in Florida and California
ordinarily rise and fall together. See 17-20, 116-18.
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200. During the 2Q13 Earnings Call, Defendants again discussed the factors

that caused the decline in attendance and, yet again, omitted Blackfish as even a

contributing cause. For example, Heaney repeated the declining attendance figures

announced in the 2Q13 Press Release and re-affirmed that new pricing initiatives,

adverse weather and the timing of the holiday and school schedule and nothing else

had caused that decline:

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As mentioned in our earnings release, the most significant driver of the


lower attendance was the expected impact of new pricing and yield
management strategies that reduced attendance but increased revenue
per capita and overall revenue. The next largest driver was an
unexpected impact from adverse weather in our Florida and Virginia
parks in the second quarter and at all but one of our park locations in
June. Lastly, the early timing of Easter in March caused an overlap of
spring break in many of our markets, which had a negative effect on
attendance for the year-to-date period. From a quarterly perspective,
the early Easter also shifted attendance out of the second quarter into
the first quarter, as discussed in our prior earnings call.

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201. Tim Conder, a Wells Fargo Securities analyst, questioned Defendants


proffered bases for the decline in attendance, and pressed Defendants for additional
detail. Conder asked can you quantify any of the impact in any way to the Virginia
and the Florida parks in particular? In response, Heaney apportioned the loss in
attendance equally amongst pricing, weather and the holidays, providing that each was
to blame for one-third of the 6% year-to-date decline (which included a 9.5% 2Q13
decline). He thus excluded any other factor, including Blackfish, as having affected the
Companys attendance:
One way to slice apart the attendance numbers are, if you look at our
year-to-date number we were 605,000 down in attendance versus the
prior year. To break that down a little bit for you, a little over a third of
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that was due to the pricing and yield management efforts that took
place in the quarter, so that was somewhat of an expected impact.
About a third we can attribute to the adverse weather we had in Florida
and Virginia and as you mentioned, all of the parks except one in June.
And then the last piece was the compression of Easter and spring break.
That was a little bit less than a third of the variance versus the prior
year, but those are basically the three drivers. The purposeful piece of
it youll see going forward. The Easter and weather effects are
somewhat a function of, obviously, the weather. The Easter effect,
obviously, wont repeat in the second half and that's one piece of
attendance well pick up in the third and fourth quarters.

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202.

Each of Defendants statements set forth above in 200-01 regarding the

causes of the decline in SeaWorlds attendance figures was materially false and
misleading for the reasons set forth above in 188-89 and 199.
D.

August 29, 2013 SeaWorlds Statements To The Media

203.

On August 29, 2013, following the 2Q13 Press Release and Earnings

Call, the Los Angeles Times called into question the Companys representation to
investors that the 6% decline over the first half of 2013 was attributable to bad weather,
suggesting that bad publicity stemming from Blackfish may have played a role. In
response, Jacobs, speaking on behalf of the Company, flatly denied the suggestion that
Blackfish or the public backlash spurred on by the film was hurting attendance, stating
that Blackfish has had no attendance impact. That same day again denying that
negative publicity from Blackfish was impacting the gates at SeaWorlds parks
Jacobs told Bloomberg that [w]e [SeaWorld] can attribute no attendance impact at
all to the movie.
204. In addition to the reasons set forth above in 188-89 and 199, each of
Jacobs August 29, 2013 statements made on behalf of the Company set forth above in
203 was materially false and misleading because by the time of each statement:

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g)

SeaWorld was in the midst of an unprecedented attendance decline,


having reported a 9.5% decline in its 2Q13 attendance, dropping
from approximately 7.2 million in 2012 to 6.6 million guests in
2013. 2013[,] a trend that revealed something beyond the
ordinary factors of weather and schedules was occurring.

h)

a) Blackfish had reached an even larger domestic and international


audience, thus increasing the probability that the film was having
or would have an impact on the Companys operations and
attendance. For example, on July 19, 2013, Blackfish was released
in U.S. theaters. Also in July 2013, the film was made available to
British customers of Netflix.

i)

b) SeaWorldIn January 2013, almost immediately following the


films showing at Sundance, SeaWorld began an extensive
nationwide public relations campaign in an attempt to counteract
the films predictable effect on public opinion outragenegative
effect on public opinion. Outrage at the practices reflected in the
film, and unwillingness to attend the Companys parks had
dramatically intensified the Companys public relations campaign
opposing Blackfish. by August 2013. Prior to its release in major
markets in the U.S., in July 2013, Jacobs emailed fifty (50) major
film reviewers to discredit Blackfish with a point-by-point
refutation of eight claims made in the film. Eammon Bowles,
president of Magnolia Pictures, stated publicly [f]rankly, Ive
never seen anything like it.

j)

c) SeaWorld employees believed Defendants statements that


Blackfish did not have an effect on SeaWorlds attendance were
pretty false according to CW-3. In fact, CW-3 described
SeaWorld San Diegos attendance during the period after the IPO
as off, and, both she and CW-4 believed that the negative
publicity due to Blackfish had an impact.

k)

d) Prior to 2013, the July 4th holiday was one of SeaWorlds biggest
events, but, according to CW-3, in 2013 the San Diego park was
abnormally slow during that holiday. Similarly, CW-4 recalled
that in mid-July through at least August 2013, SeaWorld cancelled
almost all of their extra dining services the San Diego park would

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normally set up for the increased summer crowds due to low


attendance.

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l)

e) Likewise, as reported by the Orlando Sentinel, the Company


purchased the rights to Web domains associated with the film title,
such as BlackfishFacts.com and TheTruthAboutBlackfish.com,
evidencing the Companys internal concern over the growing
impact of Blackfish on SeaWorlds operation and attendance.

m)

f) Prominent celebrities were urging their millions of


followsfollowers and the public in general to see Blackfish and to
then boycott SeaWorlds parks in light of the revelations of
Blackfish concerning the Companys practices.
See
135-43.132-40.

n)

g) As reported by the Huffington Post on August 10, 2013, the


Blackfish effect was so strong that upon viewing the film,
executives from Disneys Pixar announced that the company would
alter the movie storyline for the sequel to Finding Nemo, entitled
Finding Dory, so as to remove references to captive sea animal
parks.

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B.

E. November 13, 2013 3Q13 Form 10-Q, Press Release And


Earnings Call

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212. 205. On November 13, 2013, SeaWorld: (i) filed with the SEC the

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Companys 3Q13 Form 10-Q, which was signed by Heaney and Swanson; (ii) issued a

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press release announcing its third quarter 2013 results (3Q13 Press Release); and

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(iii) held the Companys 3Q13 Earnings Call, in which Atchison and Heaney

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participated on behalf of SeaWorld.

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206. The same statements set forth above in 187 purporting to warn investors

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of risks that may or could negatively impact the Companys results of operations,

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including attendance, were specifically incorporated by reference and also appeared in

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substantial form within the 3Q13 Form 10-Q, and were materially false and misleading

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for the reasons set forth above in 188-89, 199 and 204 and below in 211.
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213. 207. In the 3Q13 Press Release, among other things, SeaWorld again

reported a decline in attendance: [a]ttendance for the first nine months of 2013

declined by 4.7% compared to the same period in 2012 from 19.9 million to 18.9

million guests. According to the Company, [a]ttendance was impacted by new

pricing and yield management strategies implemented at the beginning of 2013 that

increased revenue but reduced low yielding and free attendance, adverse weather

conditions in the Companys second quarter and in July, and the negative impact of an

early Easter in 2013.

214. 208. SeaWorld then discussed the specific causes of the decline in

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attendance for the third quarter none of which, according to the Company, included

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Blackfish or negative publicity arising from the film:

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Attendance trends improved in the third quarter compared to the second


quarter reversing a negative trend earlier in the year, with a 3.6%
decline versus a 9.5% decline in the second quarter. Attendance trends
also improved steadily within the quarter with July attendance down
5.7% due to adverse weather and August/September attendance down
1.8% as weather conditions improved. Preliminary attendance in
October showed continued improvement with attendance comparable
to prior year levels. In addition to adverse weather, the attendance
decline in the third quarter was an expected result of planned strategies
that increased revenue but reduced low yielding and free attendance.
These strategies were implemented at the beginning of 2013 to increase
revenues and operating margins through higher quality attendance,
which the Company achieved in the third quarter.

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215. 209. Each statement set forth in 207-08212-13 was repeated in


substantial form within SeaWorlds 3Q13 Form 10-Q.

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216. 210. During the 3Q13 Earnings Call, Defendants continued to omit

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material facts concerning the impact of Blackfish on attendance. For example, Heaney

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repeated the declining attendance figures announced in the 3Q13 Press Release and
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re-affirmed that one half of the 3.6% decline was attributable to new pricing initiatives,

while the remainder of the attendance decline was due to adverse weather not

Blackfish:

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Attendance trends improved in the third quarter compared to the second


quarter, reversing a negative trend earlier in the year with a 3.6%
decline in the third quarter versus a 9.5% decline in the second quarter.
This improvement continued into October and November, with
attendance running flat with prior year levels. Roughly half of the 3.6%
decline in the third quarter was expected due to new pricing and yield
management strategies implemented at the beginning of 2013 to
increase revenue, per capita revenue and operating margin. The
remainder of the attendance decline in the third quarter was due to
adverse weather in July when we had above average precipitation in all
of our markets, including record precipitation in Florida. Weather
conditions improved in August and September, and our attendance
trends improved accordingly.

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217. 211. Each of Defendants statements set forth in 207-10212-15 blaming

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adverse weather conditions and/or pricing and yield management strategies for the

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decline in SeaWorlds attendance figures was materially false and misleading for the

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reasons set forth above in 188-89, 199 and 204210 because in addition to being

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subject to the same adverse weather conditions as SeaWorld in Orlando and

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AnaheimSouthern California Disney and Universal also implemented pricing

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increases applicable to the quarter and nonetheless reported comparable or higher

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attendance figures for the quarter than in the preceding year, as discussed above in

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128-32. 125-29 and recognized by S&P Capital IQs November 18, 2013

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observation that SeaWorlds 3Q13 attendance declines were counter to trends at

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peers.

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C.

F. November 14, 2013 Atchisons Statements To The Media

218. 212. On or around November 14, 2013, Atchison again rejected the

assertion that Blackfish had or was having any impact on the Companys attendance.

Specifically, Atchison stated to the Wall Street Journal: I scratch my head if theres

any notable impact from this film at all, and I cant attribute one to it, adding

[i]ronically, our attendance has improved since the movie came out.

219. 213. In addition to the reasons set forth above in 188-89, 199, 204210

and 211,216, Atchisons statement denying that Blackfish had or was having any

impact on the Companys business as of November 14, 2013 was materially false and

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misleading because by the time of his statement:


a)

Blackfish, which had already inspired public outrage against


SeaWorld, now had reached an even larger global audience.
Notably, on October 24, 2013, CNN aired Blackfish to an estimated
twenty-one (21) million viewers, and continued to air and discuss
the film multiple times a day thereafter. According to CW-1,
media exposure for Blackfish just kept getting worse from October
forward.

b)

For SeaWorld San Diego, after CNN aired Blackfish, CW-3


noticed a drop in attendance of approximately 20% compared with
previous years, reflected in the budgeted attendance report that she
and others received, which she stated must have been attributable,
at least in part, to Blackfish.

c)

External polls evidenced that consumers were no longer interested


in attending SeaWorlds parks after viewing Blackfish, including
an October 25, 2013 poll conducted by CNN asking [w]ould you
take your kids to SeaWorld in light of the information revealed by
Blackfish. Of approximately 3,000 responses, 86% stated No.
See 144-45.141-42.

d)

Teenagers and high school classes like San Diegos Point Loma
High School, discussed above in 146,143, started refusing to

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attend SeaWorlds parks until the Company changed its business


practices, drawing additional nationwide attention to Blackfish.

1
2
3

e)

Blackfish had sparked enormous opposition to SeaWorlds float at


the annual Macys Thanksgiving Day Parade, as Macys received
more than 80,000 emails urging it to ban SeaWorld from
participating in light of Blackfish.

f)

Further to 135132-43,40, above, after viewing Blackfish, more


and more prominent celebrities took to Twitter to campaign against
SeaWorlds parks. For example, on September 8, 2013, Russell
Brand tweeted to his 9.06 million followers: Do watch Black
Fish. Dont go to SeaWorld, a stain upon humanity posing as
entertainment. On October 28, 2013, Stephen Fry similarly
tweeted to his 8.6 million followers:
Finally watched
@Blackfishmovie blackfishmovie.com I hope Seaworld goes out
of business. Horrifying.

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8
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10
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G.

13

December 9, 2014 and December 12, 2014 December SPO Offering


Materials

14

214. On December 9, 2013 and December 12, 2013, in connection with the

15

Companys December SPO, SeaWorld filed with the SEC its December SPO Offering

16

Materials. The same statements set forth above in 187 purporting to warn investors of

17

risks that may or could negatively impact the Companys results of operations,

18

including attendance, were specifically incorporated by reference or appeared in

19

substantial form within the December SPO Offering Materials, and were materially

20

false and misleading for the reasons set forth above in 188-89, 199, 204, 211 and

21

213.

22
23

H. December 20, 2013 Atchisons Statements To The Orlando


Sentinel

24

220. 215. As reported by the Orlando Sentinel, on December 20, 2013,

25

Atchison continued to conceal the impact of Blackfish on the Companys business and

D.

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deny the negative publicity for SeaWorld that the film had spawned. For example,

Atchison stated [a]s much data as we have and as much as we look, I cant connect

anything really between the attention that the film has gotten and any effect on our

business.

221. 216. In addition to the reasons set forth above in 188-89, 199, 204,

211210, 216 and 213,218, Atchisons statement denying the impact of Blackfish on the

Companys business and attendance as of December 20, 2013 was materially false and

misleading because:

a)

Beginning as early as November 2013, as a direct consequence of


Blackfish, nearly every act SeaWorld had booked to headline the
Companys annual Bands, Brews & BBQ concert series in
February and March 2014 at the Orlando and Tampa parks
cancelled their appearances following the public backlash directed
towards SeaWorld due to Blackfish. See 147144-52.49. These
cancellations received significant media attention, including from
The New York Times, CNN, Orlando Sentinel and National
Geographic.

b)

Beginning as early as December 2013 as Atchison admitted


during the December 20 interview events such as the artist
cancellations forced SeaWorld to launch what ABC News and the
Orlando Sentinel called a big PR blitz to attempt to counteract
the snowballing Blackfish effect. SeaWorlds efforts included
placing full-page ads in the country's largest newspapers and on
social media defending SeaWorlds brand.

c)

By December 2013, Blackfish was poised to reach even more


viewers, as the film was made available on Netflix. Moreover, by
December 2013, the Blackfish effect had continued to spread on
social media, particularly through the use of Twitter and online
petitions on Change.org or related websites. As reported by CNN,
social media sites were filled with comments from people vowing
theyll never go to the [SeaWorld-owned] parks again after
viewing the film.

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d)

In December 2013, SeaWorld again resorted to offering


unprecedented discounts as the Company continued to battle
negative publicity related to Blackfish. For example, SeaWorld
turned to Groupon to promote tickets, allowing users to buy as
many as ten (10) tickets to SeaWorld Orlando for $59 each 40%
below the basic gate price. During a telecast of Legal View with
Ashleigh Banfield on December 19, 2013, Peter Shankman, a CNN
Social Medial Consultant, reported that this type of ticket
promotion by SeaWorld had never happened before and
demonstrated the incredible hit theyve taken.

e)

As discussed above in 135132-43,40, after viewing Blackfish,


prominent celebrities took to Twitter to campaign against
SeaWorlds parks. For example, Arianna Grande, who maintains
24.6 million followers, implored fans to watch the film and boycott
SeaWorld: I highly recommend all of my fans to watch Blackfish
and never go to SeaWorld again.

f)

Beginning in December 2013, SeaWorld could no longer utilize its


longstanding soundtrack accompanying orca shows at its parks
because of public backlash over Blackfish. Specifically, Joan Jett
issued a cease and desist letter to SeaWorld demanding that the
Company no longer use her music the song I Love Rock and
Roll during orca whale shows. After viewing Blackfish, Jett
wrote that she was among the millions who saw Blackfish and
[was] sickened that [her] music was blasted without [her]
permission at sound-sensitive marine mammals.

g)

Blackfish prompted numerous schools to either cancel


long-standing field trips to SeaWorlds parks or publicly swear off
attending the parks until SeaWorld changed its policies. For
example, as reported by CNN, Point Dume Marine Science
Elementary School in Malibu, California canceled its
long-standing annual trip to the Companys park over concerns
about the treatment of whales as shown in Blackfish.

h)

Blackfish sparked enormous opposition to SeaWorlds float at the


annual Macys Thanksgiving Day Parade. As reported by CNN on
November 25, 2013, an online petition released by PETA asking

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that the SeaWorld float be removed from the parade received more
than 80,000 signatures. Similarly, prominent celebrities like Alec
Baldwin publicly urged Macys to ban the SeaWorld float. In an
open email to Macys, Baldwin wrote: Please dont be a party of
SeaWorlds crisis-management plan, as reported by The New York
Times on November 18, 2013.

1
2
3
4
5

i)

6
7
8
9
10

E.

As SeaWorld later admitted, SeaWorld sent its employees to pose


as animal-rights activists to infiltrate Blackfish-related protests.
According to Bloomberg, this espionage campaign began as early
as November 28, 2013 at the Macys Thanksgiving Day Parade in
2013. See 112.

I. March 13, 2014 4Q13 And FY 2013 Press Release And Earnings
Call

11

222. 217. On March 13, 2014, SeaWorld issued a press release (4Q13 Press

12

Release) announcing its fourth quarter 2013 results and its results for the year ended

13

December 31, 2013 (FY 2013) and held the Companys 4Q13 Earnings Call, in

14

which Atchison and Heaney participated on behalf of SeaWorld.

15
16

223. 218. In the 4Q13 Press Release, among other things, the Company
reported a decline in both the 4Q13 and full-year attendance.

17

224. 219. SeaWorld reported that its 2013 attendance had declined by 4.1%,

18

from 24.4 million guests in 2012 to 23.4 million guests in 2013. It stated three reasons

19

for this decline none of which was Blackfish: The decline was primarily attributable

20

to the expected result of planned pricing and yield management strategies that

21

increased revenue but reduced low yielding and free attendance. Also contributing to

22

the decline in full year attendance was unexpected adverse weather conditions in the

23

Companys second quarter and July as well as the impact of an early Easter in 2013.

24

225. 220. With respect to the fourth quarter, SeaWorld reported that

25

consolidated fourth quarter attendance declined by 1.4% to 4.5 million guests in

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2013 and attributed the entire decline to planned pricing and yield management

strategies the Company had implemented in January 2013:

The attendance decline was the expected result of planned pricing and
yield management strategies implemented at the beginning of 2013.
Attendance trends improved sequentially through the year with a 1.4%
decline in the fourth quarter compared to a 3.6% decline in the third
quarter and a 5.7% decline in the first half of the year.

226. 221. In addition to the reasons set forth above in 188-89, 199, 204, 211,

213 and210, 216, 218 and 220, each of Defendants statements set forth above in

219-20223-24 regarding the causes of the decline in SeaWorlds attendance figures

4
5

10
11

was materially false and misleading because:


a)

According to the 2013 TEA Report and discussed above in


119-21,17-20 and 116-18, nearly all of the major theme park
groups with locations in the U.S. including Disney and Universal
experienced increases in full year attendance for 2013 despite
many being located in the same geographic market as the
Companys SeaWorld Orlando and Busch Gardens Tampa parks
and subject to the same calendar as SeaWorld, laying bare the
Companys attempt to attribute attendance declines in 2013 to
adverse weather and holiday timing. Specifically, Disney, and
Universal and Six Flags experienced increases of 4.8%, and 5.3%
and 1.4%, respectively.

b)

As reported in the 2013 TEA Report and discussed above in


119-21,17-20 and 116-18, nearly all of the largest individual
theme parks in the U.S. likewise experienced significant
year-over-year attendance increases in 2013, including those
located in the same geographic market as SeaWorld. For example,
while SeaWorlds parks in Orlando and San Diego experienced a
5% and 3% year-over-year loss in attendance, respectively,
Disneys Magic Kingdom, Epcot, Animal Kingdom and California
Adventures realized gains in year-over-year attendance of 6.0%,
1.5%, 2.0% and 9.5%, respectively. Universal Studios parks in
Florida and Hollywood, California similarly experienced
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year-over-year increases in attendance of 14% and 4%,


respectively.

1
2
3

c)

By the first quarter of 2014, there were more than two dozen
Blackfish-related petitions on Change.org, including one petition
asking country singer and American Idol winner Scotty McCreery
to cancel a March 1, 2014 show that collected nearly 30,000
signatures.

d)

During 4Q13, prominent sponsors some of which the Company


specifically identified within Class Period filings with the SEC
were under public pressure to terminate long-standing partnerships
with SeaWorld, as discussed above in 153150-6158 and by
CW-1.

e)

As the Seattle Post-Intelligencer reported on January 24, 2014,


SeaWorld has spent a considerable amount of money and energy
lately trying to undermine and deflect the effectiveness of the film
Blackfish, but they are unable to make much progress it just isnt
possible to rewrite history in this age of independent media.

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5
6
7
8
9
10
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12
13
14
15

227. 222. During the 4Q13 Earnings Call, Defendants continued to omit

16

material facts concerning the impact of Blackfish on park attendance. For example, in

17

explaining why 4Q13 attendance had fallen by 1.4%, Heaney stated that the decline

18

was caused by planned pricing and yield management strategies. Addressing the full

19

2013 attendance decline, Heaney explained that such decline was caused both by

20

pricing strategies and bad weather.

21

228. 223. Each of Heaneys statements set forth above in 222226 regarding

22

the causes of the decline in SeaWorlds attendance figures was materially false and

23

misleading for the reasons set forth above in 188-89, 199, 204, 211, 213, 216 and

24

221.210, 216, 218, 220 and 225.

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27

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229. 224. During the 4Q13 Earnings Call, an FBR Capital Markets analyst

Barton Crocket specifically pressed Defendants on whether Blackfish had had any

impact whatsoever on SeaWorld, including attendance:

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5
6
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8
9
10

Then if I could switch gears to get you to touch on the big thing that has
been in the media. Obviously, the animal activism discussion from the
documentary, from legislation, from bands making statements its
been in the news. And if you have a fair response to that, in terms of it
being unfair, given everything you guys do to help conservation and
make that part of your brand. But leaving aside the fairness of it, I was
just wondering if you could comment on whether theres any impact
that youve noticed at all on satisfaction or attendance or the
desirability of SeaWorld for international licensees? Has this had
any impact on any of that?

11
12

230. 225. In response, Atchison stated in no uncertain terms that the Company

13

had seen no impact on the business stemming from Blackfish and that surveys

14

conducted by the Company did not reflect any shift in sentiment about intent to visit

15

[SeaWorlds] parks as a result of Blackfish. In fact, Atchison boldly claimed just the

16

opposite that Blackfish was positively impacting SeaWorld by increasing interest in

17

the park and its wildlife. Specifically, Atchison assured investors that:

18
19
20
21
22
23
24
25

With respect to the impact on our business, I get asked that a lot, too.
As much as were asked it, we can see no noticeable impact on our
business. If you follow this -- even this recent announcement, our
SeaWorld parks had record attendance in the fourth quarter of the year,
and are out-performing our other parks by considerable margin.
***
With respect to national surveys and data that we collect around our
reputation efforts and image, there's awareness of the movie that kind
of peaks and drops as CNN -- who is one of the owners of the movie, by
the way -- CNN shows it repeatedly from time to time, so that does

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spike on occasion. But our surveys dont reflect any shift in sentiment
about intent to visit our parks.

2
3
4
5
6
7
8

***
A matter of fact, the movie in some ways has actually made perhaps
more interest in marine mammal parks, and actually even about us. We
have seen that reflected through certain visitor profiles, and certain
guest comments and things we get. The movie did not get an Oscar
nomination in January, and we continue to take proactive efforts
around communicating with our guests and business partners and
others.
***

9
10
11
12

But ultimately the assertions by the animal rights, animal activist


community -- they dont necessarily burden themselves with fact, and
we have to deal with that from time to time. But we have seen no
impact on the business.

13

231. 226. In addition to the reasons set forth above in 188-89, 199, 204, 211,

14

213, 216 and 221,210, 216, 218, 220 and 225, each of Atchisons statements set forth

15

above in 225,229, which outright denied the impact Blackfish was having on

16

SeaWorlds attendance figures and business as of March 13, 2014, was materially false

17

and misleading because:

18

a)

PETA was actively campaigning against the Company on the


national stage in light of the mistreatment of animals depicted by
Blackfish, including by staging demonstrations at prominent events
such as the January 1, 2014 Rose Parade.

b)

Recognizing the impact of Blackfish on the publics willingness to


attend the SeaWorlds parks, the Company attempted to
manipulate the results of a January 2014 public poll conducted by
the Orlando Sentinel, which asked whether CNNs Blackfish
[sic] documentary changes your perception of SeaWorld. See
144-45. 141-42.

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J.

March and April 2014 2013 Form 10-K And April SPO Offering
Materials

2
3

227. On March 21, 2014, SeaWorld filed with the SEC its 2013 Form 10-K,

which was signed by Atchison, Heaney, Swanson, and DAlessandro. On April 2,

2014 and April 4, 2014, in connection with the Companys April SPO, SeaWorld filed

with the SEC its April SPO Offering Materials.

228. The same statements set forth above in 187 purporting to warn investors

of risks that may or could negatively impact the Companys results of operations,

including attendance, were specifically incorporated by reference or appeared in

10

substantial form within the 2013 Form 10-K and April SPO Offering Materials, and

11

were materially false and misleading for the reasons set forth above in 188-89, 199,

12

204, 211, 213, 216, 221 and 226.

13

c)

As SeaWorld reports in its SEC filings, [a]pproximately


two-thirds of the Companys attendance and revenues are
generated in the second and third quarters of the year. SeaWorld
reported 4.5 million guests as its total attendance at all its parks in
4Q13, which only equated to roughly one-sixth of the total
attendance (23.391 million) that SeaWorld reported for FY 2013.
Therefore, the assertion that SeaWorld parks had record
attendance created a misguided and disproportional impression on
investors.

d)

Despite claiming that SeaWorld-branded parks are


out-performing our other parks by considerable margin[,]
Defendants failed to mention that many of the non-SeaWorld
branded parks were partially or entirely closed during 4Q13.
Specifically, according to SeaWorlds SEC filings, all of the
following parks are closed for all or some of the winter quarter: (i)
Aquatica Orlando (Season: May September); (ii) Water Country
USA (Season: May September); (iii) Adventure Island (Season:
March October); (iv) Busch Gardens Virginia (Season: March

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October; December); and (v) Sesame Place (Season: May


October; December).

1
2
e)

3
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6

F.

Atchison provided no detail to support the basis of his claim that


SeaWorld-branded parks experienced record attendance. And,
SeaWorld admittedly does not disclose the attendance figures for
its individual parks to investors or the public, leaving investors
with no way of verifying Atchisons remarks.

K. May 14, 2014 1Q14 Form-10Q, Press Release And Earnings Call

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232. 229. On May 14, 2014, SeaWorld: (i) filed with the SEC the Companys
1Q14 Form 10-Q, which was signed by Heaney and Swanson; (ii) issued a press
release announcing its first quarter 2014 financial results (1Q14 Press Release); and
(iii) held the Companys 1Q14 Earnings Call, in which Atchison and Heaney
participated on behalf of SeaWorld.
230. The same statements set forth above in 187 purporting to warn investors
of risks that may or could negatively impact the Companys results of operations,
including attendance, were specifically incorporated by reference within the 1Q14
Form 10-Q, and were materially false and misleading for the reasons set forth above in
188-89, 199, 204, 211, 213, 216, 221 and 226 and below in 233.
233. 231. In the 1Q14 Press Release and 1Q14 Form 10-Q, among other
things, SeaWorld reported a staggering 13% decrease in attendance for the first
quarter 2014, which the Company attributed to factors other than Blackfish:
Attendance in the first quarter was impacted by a shift in the timing of
Easter into the second quarter of 2014, which caused a shift in the
Spring Break holiday period for schools in many of the Companys key
source markets. Attendance was also impacted by adverse weather,
particularly above average precipitation in the Florida market as well as
below average temperatures in the Texas market for the first quarter of
2014.

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234. 232. During the 1Q14 Earnings Call, Heaney echoed the representations

in the Companys 1Q14 Press Release, claiming [t]he shortfall in attendance is

attributable to the shift of Easter and spring break into the second quarter, as well as

adverse weather and fewer operating days in 2014. Prior years where Easter was in

late April, the Company experienced a similar shift in first-quarter attendance.

235. 233. In addition to the reasons set forth above in 188-89, 199, 204, 211,

213,210, 216, 221218, 220, 225 and 226,230, each of Defendants statements set forth

above in 231-32232-33 regarding the causes of the 13% decline in SeaWorlds

attendance figures was materially false and misleading because:

10

a)

Blackfish had inspired a proposed bill, which could devastate


SeaWorlds business model. On March 7, 2014, California
Assemblyman Richard Bloom introduced the Orca Welfare and
Safety Act, which would ban SeaWorlds San Diego park from
featuring orcas in entertainment performances and from breeding,
importing and exporting orcas. See 162-65.159-62. National
media uniformly tied this bill directly to Blackfish. For example,
USA Today reported the bill to be a result of details revealed in the
movie Blackfish.

b)

Regardless of whether Defendants could precisely quantify the


impact of Blackfish on attendance as of 1Q14, it was clear that it
was having some negative impact. As Defendant, as evidenced by
Atchisons comments concerning the impact of the
Blackfish-inspired killer whale legislation.
Specifically, as
Atchison admitted during the Companys August 12, 2014 second
quarter earnings conference call (2Q14 Earnings Call), in May
the Company was still grappling with what impact there would be
related to the news attention around the legislation. So Im not sure
that we had a clear view.... Despite the fact that Blackfish had
been plaguing the Company for over a year and a half, Atchison
claimed that in May 2014 Defendants thought it was too early to
call and tell what kind of impact Blackfish may have. Given this
uncertainly, Defendants could not reasonable reject Blackfish as a

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cause of SeaWorlds attendance decline. Indeed, Atchison


conceded that SeaWorld should have responded to Blackfish earlier
in an August 20, 2014 interview with the Orlando Sentinel. See
176. Undoubtedly, SeaWorld was on notice and aware that
Blackfish was impacting its business long before it finally admitted
such on August 13, 2014. However, SeaWorlds chosen strategy
was to ignore Blackfish and deny its credibilityboth to the public
and investors

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6
7
8
9
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12
13

c)

While Defendants blamed adverse weather conditions and the shift


of Easter and spring break into the second quarter for the decline in
SeaWorlds attendance figures, Disney and Universal both of
which were subject to the same adverse weather conditions and
shifts in holiday and school calendars reported comparable
(Universal) or record (Disney) attendance figures for 1Q14. For
instance, Disney reported a 3% increase in attendance at its
domestic parks for the quarter. See 122115-27.24.
DEFENDANTS MATERIALLY FALSE AND MISLEADING
VI.
STATEMENTS AND OMISSIONS OF MATERIAL FACT
SECURITIES ACT CLAIMS

14

234. The claims in Counts I-III are brought pursuant to Sections 11, 12 and 15

15

of the Securities Act. The Securities Act claims are brought on behalf of persons or

16

entities who purchased or otherwise acquired SeaWorld common stock pursuant or

17

traceable to the materially false and misleading IPO Offering Materials, the December

18

SPO Offering Materials or the April SPO Offering Materials. The Securities Act

19

claims are based solely on strict liability and negligence, and are not based on any

20

knowing or reckless conduct by or on behalf of Defendants i.e., they do not allege,

21

and do not sound in, fraud and Plaintiffs specifically disclaim any allegations of

22

fraud, scienter, or recklessness in connection with these non-fraud claims.

23
24

A.

Defendants Issued Materially False And Misleading Statements In


The IPO Offering Materials

25
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27

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235. On or about April 24, 2013, the Company completed an IPO of its

common stock at a price of $27.00 per share. In the IPO, the Company issued and sold

10,000,000 shares of common stock and certain selling stockholders offered and sold

19,900,000 shares of common stock, which included 3,900,000 shares of common

stock pursuant to the exercise in full of the underwriters option to purchase additional

shares. In connection with the IPO, the Company filed with the SEC on April 18, 2013

and April 19, 2013 the IPO Offering Materials. The IPO was underwritten by the

following Underwriter Defendants:

9
10
11
12
13
14
15
16
17
18
19
20

Underwriters
Goldman, Sachs & Co.
J. P. Morgan Securities LLC
Citigroup Global Markets Inc.
Merrill Lynch, Pierce, Fenner & Smith Inc.
Barclays Capital Inc.
Wells Fargo Securities, LLC
Blackstone Advisory Partners L.P.
Lazard Capital Markets LLC
Macquarie Capital (USA) Inc.
KeyBanc Capital Markets Inc.
Nomura Securities International, Inc.
Drexel Hamilton, LLC
Samuel A. Ramirez & Company, Inc.
Total

Number of Shares
5,720,000
5,720,000
3,250,000
2,600,000
2,340,000
2,080,000
1,300,000
1,300,000
650,000
390,000
390,000
130,000
130,000
26,000,000

21
22

236. Rather than disclosing material facts required to make the IPO Offering

23

Materials not misleading, and without ever mentioning Blackfish by name, Defendants

24

offered only a generalized reference to the fact that accidents or adverse publicity may

25

harm the Company in the future:

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27

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1
2
3
4
5
6

An accident or an injury at any of our theme parks or at theme parks


operated by competitors, particularly an accident or an injury involving
the safety of guests and employees, that receives media attention, is the
topic of a book, film, documentary or is otherwise the subject of public
discussions, may harm our brands or reputation, cause a loss of
consumer confidence in the Company, reduce attendance at our theme
parks and negatively impact our results of operations. Such incidents
have occurred in the past and may occur in the future.

11

***
[I]n February 2010, a trainer was killed while engaged in an interaction
with a killer whale.This incident has also been the subject of
significant media attention, including television and newspaper
coverage, a documentary and a book, as well as discussions in social
media. This incident and similar events that may occur in the future
may harm our reputation, reduce attendance and negatively impact our
business, financial condition and results of operations.

12

237. In reality, however, Blackfish was already having a negative impact on

13

SeaWorlds attendance, reputation and financial health. Indeed, each of Defendants

14

statements set forth above in 236 was materially false and misleading for the reasons

15

set forth above in 188-89.

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8
9
10

16
17

B.

Defendants Issued Materially False And Misleading Statements In


The December And April SPO Offering Materials

18
19
20
21
22
23
24
25
26
27

238. On December 17, 2013, the Company completed the December SPO a
secondary offering of 18,000,000 shares of common stock at a price of $30.00 per
share. In connection with the December SPO Offering, the Company filed with the
SEC the December SPO Offering Materials. The December SPO was underwritten by
the following Underwriter Defendants:
Underwriters
Goldman, Sachs & Co.
J. P. Morgan Securities LLC

Number of Shares
3,600,000
3,600,000

134
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1
2
3
4
5
6
7
8
9
10
11

Underwriters
Deutsche Bank Securities Inc.
Merrill Lynch, Pierce, Fenner & Smith Inc.
Barclays Capital Inc.
Citigroup Global Markets, Inc.
Wells Fargo Securities, LLC
Blackstone Advisory Partners L.P.
Lazard Capital Markets LLC
Macquarie Capital (USA) Inc.
KeyBanc Capital Markets, Inc.
Nomura Securities International, Inc.
Piper Jaffray & Co.
Drexel Hamilton, LLC
Samuel A. Ramirez & Company, Inc.
Total

Number of Shares
2,700,000
1,350,000
1,350,000
1,350,000
1,350,000
900,000
450,000
450,000
270,000
270,000
180,000
90,000
90,000
18,000,000

12

239. As was the case with the IPO Offering Materials, rather than disclosing

13

material facts required to make the December SPO Offering Materials not misleading,

14

Defendants again offered only a generalized reference to the fact that accidents or

15

adverse publicity may harm the Company, and repeated the statement set forth above

16

in 236. Defendants statement was materially false and misleading for the reasons set

17

forth above in 188-89, 199, 204, 211, 213.

18

240. On April 9, 2014, the Company completed the April SPO a secondary

19

offering of 17,250,000 shares of common stock at a price of $30.00 per share, which

20

included 2,250,000 shares that were offered by certain selling shareholders pursuant to

21

the full exercise of the underwriters option to purchase additional shares.

22

connection with the April SPO, the Company filed with the SEC the April SPO

23

Offering Materials. The April SPO was underwritten by the following Underwriter

24

Defendants:

25
26
27

Underwriters

In

Number of Shares
135
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1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22

Underwriters
Goldman, Sachs & Co.
J. P. Morgan Securities LLC
Deutsche Bank Securities Inc.
Merrill Lynch, Pierce, Fenner & Smith Inc.
Citigroup Global Markets Inc.
Wells Fargo Securities, LLC
Blackstone Advisory Partners L.P.
Macquarie Capital (USA) Inc.
Lazard Capital Markets LLC
KeyBanc Capital Markets Inc.
Piper Jaffray & Co.
Drexel Hamilton, LLC
Samuel A. Ramirez & Company, Inc.
Telsey Advisory Group LLC
Total

Number of Shares
3,000,000
3,000,000
1,800,000
1,125,000
1,125,000
1,125,000
750,000
750,000
375,000
300,000
300,000
75,000
75,000
75,000
15,000,000

241. As was the case with the IPO Offering Materials and December SPO
Offering Materials, rather than disclosing material facts required to make the April
SPO Offering Materials not misleading, Defendants again offered only a generalized
reference to the fact that accidents or adverse publicity may harm the Company, and
repeated the statement set forth above in 236. Defendants statement was materially
false and misleading for the reasons set forth above in 188-89, 199, 204 211, 213,
216, 221, 226, 233.
VI. VII. ADDITIONAL SCIENTER ALLEGATIONS EXCHANGE ACT
CLAIMS
A.

Defendants Actual Knowledge Of And/Or Reckless Disregard For


Material Facts Contrary To Their Public Statements

23

236. 242. As alleged herein, Defendants SeaWorld, Atchison, Heaney and

24

Swanson and the Individual Defendants acted with scienter in that each Defendant: (i)

25

knew or recklessly disregarded that the public statements or documents issued or

26
27

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disseminated in the name of the Company (or in their own name) were materially false

and misleading when made; (ii) knew or recklessly disregarded that such statements or

documents would be issued or disseminated to the investing public; and (iii)

knowingly and substantially participated or acquiesced in the issuance or

dissemination of such statements or documents as primary violators of the federal

securities laws.

Defendants by virtue of their receipt of information reflecting the true facts regarding

SeaWorld, and their control over, receipt and/or modification of SeaWorlds materially

misleading statements, were active and culpable participants in the fraudulent scheme

10

SeaWorld, Atchison, Heaney and Swanson, and the Individual

alleged herein.

11

237. 243. As alleged herein, numerous facts support a strong inference that,

12

during the Class Period, SeaWorld, Atchison, Heaney and Swanson and the Individual

13

Defendants knew or recklessly disregarded the false and misleading nature of

14

information that they caused to be disseminated to the investing public, which

15

artificially inflated the trading prices of the Companys common stock during the Class

16

Period.

17

concerning: (i) the then-existing impact (or purported lack thereof) of Blackfish on

18

SeaWorlds attendance, brand and reputation; and (ii) the cause of the decline in the

19

Companys attendance figures on a quarterly and year-end basis, could not have been

20

made during the Class Period without the knowledge and complicity or reckless

21

disregard of the personnel at the highest levels of the Company, including Atchison,

22

Heaney and Swanson. The nature of these facts is of such prominence to investors that

23

it would be absurd to suggest that management was without knowledge of the

24

underlying matters.

The misrepresentations and omissions of material fact alleged herein

25
26
27

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238. 244. The Individual Defendants Atchison, Heaney and Swanson, because

of their positions with SeaWorld, controlled the contents of the Companys public

statements during the Class Period. In this regard, each was provided with, or had

access to, copies of the documents alleged herein to be false and/or misleading prior to

or shortly after, their issuance, had access to the data underlying the representations

therein and had the ability and opportunity to prevent the materially false and

misleading statements from being made and/or to cause them to be corrected. Because

of their positions and access to material non-public information, Atchison, Heaney and

Swansonthe Individual Defendants knew or recklessly disregarded that the adverse

10

facts alleged herein had not been disclosed to, and/or were being concealed from, the

11

public, and that the positive representations that were being made were materially

12

false, misleading, and incomplete. As a result, Atchison, Heaney and Swansonthe

13

Individual Defendants are responsible for the accuracy of SeaWorlds corporate

14

statements, and each is therefore responsible and liable for the representations

15

contained therein and/or omitted therefrom.

16

239. 245. SeaWorld knowingly and/or recklessly made the materially false

17

and/or misleading statements and omissions of material fact alleged herein based on

18

the fact that Defendants Atchison, Heaney and Swanson, the Companys CEO, CFO,

19

and CAO throughout the Class Period, knew and/or recklessly disregarded that the

20

Companys statements were materially false and/or misleading, and/or omitted

21

material facts at the times that such statements were made. Each of these Defendants

22

was among the most senior executives of the Company throughout the Class Period

23

and a member of the Companys management, and their knowledge may be imputed to

24

the Company.

25
26
27

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240. 246. Further contributing to a strong inference of scienter, the fraud

alleged herein concerns the very core of SeaWorlds operations park attendance the

Companys key proxy for the success and stability of its business operations. Indeed,

SeaWorld represented to investors in public filings that: (i) its revenues are driven

primarily by attendance, as approximately 63% of SeaWorlds 2013 revenue came

from selling admission tickets; (ii) the Companys entire growth strategy revolves

around increas[ing] [the Companys] existing theme park revenues through strategies

designed to drive higher attendance and increase in-park per capita spending; and (iii)

reductions in attendance can materially adversely affect [SeaWorlds] business,

10

financial condition and results of operations.

11

241. 247. Thus, as SeaWorlds top officers, Atchison, Heaney and Swansonthe

12

Individual Defendants controlled the Companys day-to-day operations and were

13

informed of and responsible for monitoring important developments concerning

14

attendance. Indeed, throughout the Class Period, Atchison and Heaney were among

15

those responsible for making specific communications to analysts and the press in

16

response to specific questions concerning the Companys attendance, the purported

17

causes of its decline and the impact of Blackfish on the Companys operations. In each

18

instance, Defendants affirmatively and conclusively denied that Blackfish had or was

19

having any impact whatsoever on the Company. In doing so, Defendants knew and/or

20

recklessly disregarded the false and misleading nature of the information that they

21

caused to be disseminated to the investing public, which artificially inflated the trading

22

prices of the Companys common stock during the Class Period.

23

242. 248. Statements made by SeaWorld, Atchison, Heaney and Swanson and

24

the Individual Defendants strongly suggest each had access to the disputed

25

information, and the total mix of allegations makes such a conclusion irrefutable.

26
27

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Indeed, on the basis of these facts, it would be absurd to suggest that these Defendants

did not have knowledge of the information contradicting their public statements.

243. 249. With this in mind, the vast majority of Defendants material

misrepresentations and omissions, explicitly or implicitly, denied that Blackfish had

had or was having any impact whatsoever on attendance. These statements could not

have been made with any reasonable basis in fact, as Atchison in large part confirmed

himself during the 2Q14 Earnings Call and in post-Class Period interviews.

244. 250. The scienter of SeaWorld, Atchison, Heaney and Swanson and the

Individual Defendants also can be inferred from the fact that the fraud here concerns

10

materially false and misleading statements and omissions intended to conceal the

11

impact of Blackfish on the Companys brand and reputation. Blackfish attacked the

12

single most important component of SeaWorlds brand its treatment of orcas. In this

13

regard, the Companys efforts to maintain the publics perception of the Company had

14

developed into another core operation by the beginning of the Class Period,

15

requiring constant oversight on a day-to-day basis. In light of the significant, public

16

nature of the potential threat to the Company arising from Blackfish, it is unlikely that

17

top management was unaware of facts undermining any purported belief or

18

representation concerning the films impact.

19

245. 251. In addition to the duties of full disclosure imposed on SeaWorld,

20

Atchison, Heaney and Swanson and the Individual Defendants as a result of making

21

affirmative statements and reports to the investing public, these Defendants also had a

22

duty to disclose information required to update and/or correct their prior misstatements

23

and/or omissions, and to update any statements or omissions that had been become

24

false or misleading as a resulting of intervening events. Further, these Defendants had

25

a duty to promptly disseminate truthful information that would be material to investors

26
27

140
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in compliance with the integrated disclosure provisions of the SEC, as embodied in

SEC Regulation S-X (17 C.F.R. Section 210.01, et seq.) and Regulation S-K (17

C.F.R. Section 29.10, et seq.), as well as other SEC regulations, including accurate and

truthful information with respect to the Companys operations, so that the market price

of the Companys common stock would be based on truthful, complete, and accurate

information. Atchison and Heaney also had duties under the Sarbanes-Oxley Act of

2002 to ensure that SeaWorlds Forms 10-Q and 10-K filed with the SEC did not

misrepresent or omit any material facts. Both Atchison and Heaney certified that

SeaWorlds Forms 10-Q and 10-K issuesissued during the Class Period d[id] not

10

contain any untrue statement of a material fact or omit to state a material fact necessary

11

to make the statements made, in light of the circumstances under which such

12

statements were made, not misleading with respect to the periods covered by those

13

filings.

14
15
16

246. 252. The following facts also support a strong inference of Defendants
scienter:
a)

SeaWorlds decision to removedremove Atchison as CEO after the


Class Period, as discussed above in 183-85.187-89 and 206-07.

b)

SeaWorld was both aware of and took affirmative steps to


counteract the strong anti-SeaWorld sentiment on numerous social
media platforms following Blackfish, including by establishing
project or war rooms and groups responsible for real-time
responses to such sentiment, as stated by CW-1.

c)

According to CW-1, SeaWorlds brand-specific hashtags, created


for its followers, were being hijacked by activists and coupled with
Blackfish-inspired attacks on SeaWorld, ensuring that the Blackfish
effect would continue to intensify.

d)

According to CW-3, SeaWorlds Finance Department made


accessible to mid- and high-level management SeaWorlds Daily

17
18
19
20
21
22
23
24
25
26
27

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Attendance Budget via a shared network. CW-3 believed that


Atchison, as the CEO of the Company, would have access to
similar data on a daily basis. During the time period after CNN
aired Blackfish and before the new fiscal year, SeaWorld revised
the Daily Attendance Budget, and did so again during 2014. CW-3
believed the Daily Attendance Budget was revised as a result of
declining attendance due, at least in part, to Blackfish. According
to CW-4, the Daily Attendance Budget was also a key
attendance-based forecasting tool, as discussed above in 61.46.

1
2
3
4
5
6
7

e)

According to CW-3, SeaWorld armed employees with literature


and instructions on how to handle any incidents or inquiries tied to
Blackfish. According to CW-2, SeaWorld executives circulated an
email to employees directing them not to engage in discussion
about Blackfish with customers. According to Sarah Fischbeck,
SeaWorld actually had a collective meeting before [Blackfish]
came out telling [SeaWorld employees] to say it was fake, and
SeaWorld was feeding [its employees] lines, and instructing
them to dissuade family and friends from seeing the film.

f)

According to CW-2, CW-3 and CW-4, SeaWorld held an ECM


every month at parks for all employees. At such meetings,
attendance and Blackfish were discussed. CW-2 stated that
Atchison attended one such meeting at the San Antonio and
specifically discussed Blackfish, declaring that the negativity
towards SeaWorld arising from the film would go away. CW-4
stated that the San Diego park would typically try and schedule
such meetings when Atchison was in town and could attend.

8
9
10
11
12
13
14
15
16
17
18
19
20

B.

Motive And Opportunity Insider Selling By CEO Atchison

21

247. 253. During the Class Period, Defendants were also motivated to

22

artificially inflate SeaWorlds stock price during the Class Period in order to benefit

23

their own personal financial situation with the proceeds from insider stock sales.

24

248. 254. Atchison in particular disposed of a substantial portion of his

25

personal holdings in SeaWorld common stock in eight sales between December 2,

26

2013 and March 6, 2014, while in possession of material inside information


142
Second Amended Consolidated Amended Class Action Complaint
Case No. 14-cv-2129

27

Case 3:14-cv-02129-MMA-KSC Document 123-1 Filed 05/31/16 Page 149 of 175

concerning the enduring impact Blackfish was having on the Companys attendance.

He sold all of this stock prior to the disclosure of the Companys year-end 2013 and

4Q13 results, which showed the Companys continuing attendance declines. The

Companys stock price would not again (during the Class Period) reach the levels at

which Atchison sold his personal holdings in March 2014. And only five months later,

Atchison would admit that the Companys attendance was harmed by Blackfish and

that in March and April 2014 the Company had struggled to understand how the

Blackfish Bill would impact its attendance and revenues.

249. 255. In this regard, according to Forms 4 filed with the SEC, Atchison

10

made eight Class Period sales of his personal holdings of SeaWorld common stock,

11

selling a total of 154,000 shares, for proceeds of $4,662,235.37, between December 2,

12

2013 and March 6, 2014, as reflected in the table below:

13
14
15
16
17
18
19
20

Date
12/2/2013
12/3/2013
12/4/2013
1/2/2014
2/3/2014
2/3/2014
3/5/2014
3/6/2014
Totals

Number of Shares
28,300
16,821
4,879
50,000
45,100
4,900
2,196
1,804
154,000

Weighted Avg. Price


$29.9148
$29.6883
$29.727
$29.0736
$31.5052
$31.9523
$35.0321
$35.0321

Proceeds
$846,588.84
$499,386.89
$145,038
$1,453,680
$1,420,884.52
$156,566.27
$76,892.94
$63,197.91
$4,662,235.37

21
22

250. 256. These sales were suspicious as to amount and/or size because of the

23

gross amount of proceeds they generated, which dwarfed Atchisons total 2013

24

compensation (as disclosed by the Company) of $2,552,000, and also because they

25

disposed of 20% of Atchisons total holdings of SeaWorld common stock, even when

26
27

143
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including for calculation purposes not only vested common stock, but also unvested

and restricted common stock.

251. 257. The foregoing tightly-clustered sales were suspiciously timed in that

they were Atchisons only sales during the entire Class Period, they occurred within a

brief, discrete time window, and prior to the Companys disclosure of its full 2013 and

4Q13 performance, including attendance declines that were not in keeping with what

any other large domestic theme park reported, and because SeaWorlds common stock

price traded at its highest level during all of 2014 on March 6, 2014, when Atchison

made his final sale.

10

252. 258. Further, Atchisons Forms 4 indicate that each of the foregoing

11

trades was made pursuant to a Rule 10b5-1 trading plan. The Company has not

12

disclosed any facts about Atchisons Rule 10b5-1 trading plan (or plans) in effect

13

during the Class Period. Rather, the Company stated in its 2013 10-K that it does not

14

undertake any obligation to disclose, or to update or revise any disclosure regarding,

15

any such plans and specifically do not undertake to disclose the adoption, amendment,

16

termination or expiration of any such plans. Thus pertinent facts, such as when

17

Atchison entered into the plan or plans under which he made the foregoing trades, are

18

not available because they have not been publicly disclosed. However, to the extent

19

Atchison entered into the applicable trading plan or plans during the Class Period, this,

20

too, would support a finding of scienter.

21

VII. VIII. LOSS CAUSATION EXCHANGE ACT CLAIMS

22

253. 259. For purposes only of the Exchange Act claims alleged herein,

23

Defendants alleged unlawful conduct directly caused the losses incurred by Plaintiffs

24

and the Class. Throughout the Class Period, the prices of SeaWorld common stock

25

were artificially inflated as a direct result of Defendants materially false and

26

misleading statements and omissions regarding the purported non-effect of Blackfish


144
Second Amended Consolidated Amended Class Action Complaint
Case No. 14-cv-2129

27

Case 3:14-cv-02129-MMA-KSC Document 123-1 Filed 05/31/16 Page 151 of 175

on the Companys attendance, and thus, revenues.

The false and misleading

statements and omissions set forth above were widely disseminated to the securities

markets, investment analysts, and the investing public. The true facts became known

for the first time by investors and the market through a corrective disclosure on August

13, 2014.

254. 260. When the true facts became known and/or the materialization of the

risks that had been concealed by Defendants occurred, the price of SeaWorld common

stock declined immediately and precipitously as the artificial inflation was removed

from the market price of the stock, causing substantial damage to Plaintiffs and the

10

members of the Class.

11

255. 261. On August 13, 2014, on its 2Q14 Earnings Call and in the 2Q14

12

Press Release, SeaWorld announced surprisingly poor results for the second quarter

13

and first half of the year, with earnings of 43 cents a share well below the consensus

14

analyst estimate of 59 cents a share and slashed its prior 2014 revenue guidance from

15

between $1.49 billion and $1.52 billion to between $1.36 billion and $1.37 billion. The

16

Company made clear in its press release that the primary driver for its disappointing

17

second quarter and first half 2014 earnings was a decline in attendance of 4.3% in the

18

first half of 2014 (versus the first half of 2013). Critically, it acknowledged, for the

19

first time, that attendance at its parks had been negatively affected by the public

20

response to Blackfish specifically, what the Company termed demand pressures

21

related to recent media attention surrounding proposed legislation in the state of

22

California.

23

256. 262. After the August 13, 2014 disclosure by the Company, shares of

24

SeaWorld common stock fell by a staggering $9.25, or 32.9%, from $28.15 per share at

25
26
27

145
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the close on August 12, 2014 to $18.90 per share at the close on August 13, on

extremely heavy volume.

257. 263. As confirmed by industry, financial and business press articles and

the 2Q1314 Earnings Call: (i) the Companys reference to demand pressures from

proposed legislation referred to the so-called Blackfish bill put forward by a

California Assemblyman in March 2014; and (ii) the August 13, 2014 statements

marked the first time that the Company had admitted that Blackfish-related issues were

hurting attendance and the Companys revenues, both current and going forward.

These admissions were reported widely as notable new disclosures that underlay the

10

sharp August 13, 2014 stock price decline. See 163-75.

11

258. 264. For example, on August 13, 2014, the Wall Street Journals online

12

site, WSJ Blog, reported that SeaWorlds stock price was declining after the Company

13

had blamed its disappointing second-quarter results and lowered revenue guidance

14

on the recent media debate about its treatment of captive orcas, saying the negative

15

attention has hurt attendance. The report noted the controversy was sparked last year

16

in the wake of Blackfish, and explained that the Companys reference to demand

17

pressures related to recent media attention surrounding proposed legislation that hurt

18

attendance was a reference to the California bill proposed in March 2014 (see

19

162-65,159-62, supra), which aim[ed] to restrict SeaWorlds ability to showcase

20

some animals in that state.

21

259. 265. The report described SeaWorlds admission that Blackfish-related

22

issues were hurting attendance and thus, revenues, as an about face for SeaWorld,

23

citing Atchisons prior statements that Blackfish had had no impact on our business.

24

260. 266. Other financial press outlets also reported that, in SeaWorlds

25

August 13, 2014 public disclosures that preceded the stock price decline that day,

26
27

146
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SeaWorld had blamed its attendance decline on the Blackfish effect. For example, the

Financial Times reported on August 13, 2014 that this quarter marks the first time

management has mentioned Blackfish-related issues in its earnings results.

261. 267. The Los Angeles Times reported on August 14, 2014 that the

Companys attendance-driven revenue miss preceded this price decline: [s]hares of

SeaWorld Entertainment Inc. plunged 33% on Wednesday after the companys

earnings missed Wall Street expectations. The Orlando, Fla.-based company also

conceded for the first time that attendance at its theme parks has been hurt by negative

publicity concerning accusations by animal-rights activists that SeaWorld mistreats

10

killer whales, publicity which, according to the article, followed Blackfish.

11

262. 268. Similarly, the Washington Post reported on August 14, 2014, in an

12

article headlined, Blackfish Takes Its Toll: SeaWorld Shares Take A Nose-Dive that

13

SeaWorld acknowledged for the first time Wednesday the fallout that followed the

14

films release, admitting attendance issues in San Diego. And the Orlando Sentinel

15

reported on August 14, 2014 that Wednesday was the first time SeaWorld had

16

acknowledged that controversy about its whales had taken a toll on attendance.

17

263. 269. Discussion that occurred during the Companys 2Q14 Earnings Call

18

further confirms that the reference to demand pressures from proposed legislation

19

was in fact a reference to the so-called Blackfish bill introduced in March 2014, as

20

discussed above in 162-65.159-62.

21
22

264. 270. For the purposes of the Exchange Act claims, it was entirelyIt was

23

foreseeable to SeaWorld, Atchison, Heaney and Swanson and the Individual

24

Defendants that concealing from investors the actual and reasonably forecast impact

25

that negative publicity from Blackfish was having on attendance at the Companys

26
27

147
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parks and SeaWorlds brand and reputation, would artificially inflate the price of

SeaWorld common stock during the Class Period. It was similarly foreseeable that the

ultimate disclosure of the concealed information would cause the price of SeaWorld

common stock to drop significantly as the inflation caused by earlier misstatements

was removed from the stock by the corrective disclosure set forth herein.

265. 271. Accordingly, the conduct of these Defendants as alleged herein

proximately caused foreseeable losses under the Exchange Act to Plaintiffs and

members of the Class.

VIII. IX. PLAINTIFFS AND THE CLASS ARE ENTITLED TO A


PRESUMPTION OF RELIANCE EXCHANGE ACT CLAIMS

10
11
12
13

266. 272. At all relevant times, the market for SeaWorlds common stock was
open and efficient for the following reasons, among others:
a)

SeaWorlds common stock met the requirements for listing and


was listed and actively traded on the New York Stock Exchange, a
highly efficient electronic stock market;

b)

As a registered and regulated issuer of securities, SeaWorld filed


periodic public reports with the SEC;

c)

SeaWorld regularly communicated with public investors via


established market communication mechanisms, including
regularly disseminating press releases on the national circuits of
major newswire services and other wide-ranging public
disclosures, such as conference calls with analysts and investors
and other communications with the financial press and other
similar reporting services; and

d)

SeaWorld was followed by securities analysts employed by major


brokerage firms, including Wells Fargo Securities, LLC, FBR
Capital Markets, and Macquarie Research, which authored reports
that were distributed to the sales force and certain customers of
their respective brokerage firms. Each of these reports was
publicly available and entered the public marketplace.
148
Second Amended Consolidated Amended Class Action Complaint
Case No. 14-cv-2129

14
15
16
17
18
19
20
21
22
23
24
25
26
27

Case 3:14-cv-02129-MMA-KSC Document 123-1 Filed 05/31/16 Page 155 of 175

267. 273. As a result of the foregoing, the market for SeaWorlds common

stock promptly digested current information regarding the Company from all publicly

available sources, and the prices of SeaWorld common stock reflected such

information. Based upon the materially false and misleading statements and omissions

of material fact alleged herein, SeaWorld common stock traded at artificially inflated

prices during the Class Period. Plaintiffs and all other members of the Class purchased

SeaWorld common stock relying upon the integrity of the market price of SeaWorld

common stock and other market information relating to SeaWorld.

268. 274. Under these circumstances, all Class members suffered similar

10

injuries through their purchases and/or acquisitions of SeaWorld common stock at

11

artificially

12

fraud-on-the-market doctrine applies.

inflated

prices,

and

the

presumption

of

reliance

under

the

13

269. 275. Further, at all relevant times, Plaintiffs and the other members of the

14

Class reasonably relied upon Defendants to disclose material information as required

15

by law and in the Companys SEC filings. Plaintiffs and the other members of the

16

Class would not have purchased or otherwise acquired SeaWorld common stock at

17

artificially inflated prices if Defendants had disclosed all material information as

18

required. Thus, to the extent that Defendants concealed or improperly failed to

19

disclose material facts concerning the Company and its operations, Plaintiffs and the

20

other members of the Class are entitled to a presumption of reliance in accordance with

21

Affiliated Ute Citizens v. United States, 406 U.S. 128, 153 (1972) (Affiliated Ute).

22

IX. X. THE STATUTORY SAFE HARBOR AND BESPEAKS CAUTION


DOCTRINE ARE INAPPLICABLE

23
24

270. 276. The PSLRAs statutory safe harbor and/or the bespeaks caution

25

doctrine applicable to forward-looking statements under certain circumstances do not

26

apply to any of the materially false and/or misleading statements alleged herein.
149
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27

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271. 277. None of the statements complained of herein was a forward-looking

statement. Rather, each was a historical statement or a statement of purportedly

current facts and conditions at the time each statement was made.

272. 278. To the extent that any materially false and/or misleading statement

alleged herein, or any portion thereof, can be construed as forward-looking, such

statement was not accompanied by meaningful cautionary language identifying

important facts that could cause actual results to differ materially from those in the

statement. As set forth above in detail, given the then-existing facts contradicting

Defendants statements, the generalized risk disclosures made by Defendants were not

10

sufficient to insulate Defendants from liability for their materially false and misleading

11

statements.

12

273. 279. To the extent that the statutory safe harbor may apply to any

13

materially false and/or misleading statement alleged herein, or a portion thereof,

14

Defendants are liable for any such false and/or misleading forward-looking statement

15

because at the time such statement was made, the speaker actually knew the statement

16

was false, or the statement was authorized and/or approved by an executive officer of

17

SeaWorld who actually knew that the statement was false.

18

274. 280. Moreover, to the extent that Defendants issued any disclosures

19

purportedly designed to warn or caution investors of certain risks, those

20

disclosures were also materially false and/or misleading because they did not disclose

21

that the risks that were the subject of such warnings had already materialized and/or

22

because Defendants SeaWorld, Atchison, Heaney and Swanson had actual knowledge

23

of existing, but undisclosed, material adverse facts that rendered such cautionary

24

disclosures materially false and/or misleading.

25
26
27

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X. XI. CLASS ACTION ALLEGATIONS

275. 281. Plaintiffs bring this action as a class action pursuant to Federal Rules

of Civil Procedure 23(a) and (b)(3) individually and on behalf of a Class, consisting of

all persons and entities who: (i) purchased or otherwise acquired the publicly traded

common stock of SeaWorld between April 18, 2013 and August 13, 2014; or (ii)

purchased or otherwise acquired SeaWorld common stock pursuant or traceable to the

materially false and misleading IPO Offering Materials, the December SPO Offering

Materials or the April SPO Offering Materials.August 29, 2013 and August 13, 2014.

Excluded from the Class are: (i) Defendants; (ii) present or former executive officers

10

of SeaWorld, members of SeaWorlds Board of Directors, and members of their

11

immediate families (as defined in 17 C.F.R. 229.404, Instructions (1)(a)(iii) and

12

(1)(b)(ii)); (iii) any of the foregoing persons legal representatives, heirs, successors or

13

assigns; and (iv) any entity in which Defendants have or had a controlling interest or

14

any affiliate of SeaWorld.

15

276. 282. The members of the Class are so numerous that joinder of all

16

members is impracticable. Throughout the Class Period, the Companys securities

17

were actively traded on the NYSE. While the exact number of Class members is

18

unknown to Plaintiffs at this time, and can only be ascertained through appropriate

19

discovery from Defendants, Plaintiffs believe that there are at least hundreds, if not

20

thousands, of members in the proposed Class. Members of the Class may be identified

21

from records maintained by SeaWorld or its transfer agent, and may be notified of the

22

pendency of this action by mail using a form of notice customarily used in securities

23

class actions.

24
25
26
27

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277. 283. Plaintiffs claims are typical of the claims of the members of the

Class, as all members of the Class are similarly affected by Defendants wrongful

conduct in violation of federal law that is complained of herein.

278. 284. Plaintiffs will fairly and adequately protect the interests of the

members of the Class and have retained counsel competent and experienced in class

and securities litigation.

279. 285. Common questions of law and fact exist as to all members of the

Class and predominate over any questions solely affecting individual members of the

Class. Among the questions of law and fact common to the Class are:

10

a)

whether the federal securities laws were violated by Defendants


acts and omissions as alleged herein;

b)

whether statements made by Defendants to the investing public


during the Class Period misrepresented or omitted material facts
about the business, operations, and management of the Company;
and

c)

16

to what extent the members of the Class have sustained damages,


and the proper measure of damages.

17

280. 286. A class action is superior to all other available methods for the fair

18

and efficient adjudication of this controversy since joinder of all members is

19

impracticable. Furthermore, as the damages suffered by individual Class members

20

may be relatively small, the expense and burden of individual litigation make it

21

impossible for members of the Class to redress individually the wrongs done to them.

22

There will be no difficulty in the management of this action as a class action.

11
12
13
14
15

23
24

XI. XII. CAUSES OF ACTION


A.

Claims Brought Pursuant To The Securities Act

25
26
27

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12
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20
21
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24
25

COUNT I
For Violations Of Section 1110(b) Of The Securities Act Exchange Act And Rule
10b(5) Promulgated Thereunder
(Against SeaWorld, The and the Individual Defendants And The Underwriter
Defendants))
287. Plaintiffs repeat and reallege the allegations set forth above at 1-241
and 276-86 as if fully set forth herein. For purposes of this claim, Plaintiffs expressly
exclude and disclaim any allegation that could be construed as alleging or sounding in
fraud or intentional or reckless misconduct. This claim is based solely on negligence
and/or strict liability.
288. This claim is brought pursuant to Section 11 of the Securities Act, 15
U.S.C. 77k, on behalf of all persons who purchased or otherwise acquired SeaWorld
common stock pursuant or traceable to the materially false and misleading IPO
Offering Materials, the December SPO Offering Materials or the April SPO Offering
Materials against SeaWorld, the Individual Defendants and the Underwriter
Defendants.
289. The Registration Statements issued in connection with the IPO, the
December SPO and the April SPO contained untrue statements of material facts and
omitted material facts required to be stated in order to make the statements contained
therein not misleading, as set forth more fully above.
290. SeaWorld is the issuer of the common stock pursuant to the Registration
Statements. As the issuer of the common stock, SeaWorld is strictly liable to the
members of the Class who purchased or otherwise acquired SeaWorld common stock
pursuant or traceable to the materially false and misleading IPO Offering Materials, the
December SPO Offering Materials or the April SPO Offering Materials for the
materially untrue statements and omissions alleged herein that appeared in or were
omitted from the Registration Statements.

26
27

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1
2

291. The Individual Defendants were signatories to the Registration


Statements at the times they were filed.

292. The Underwriter Defendants were underwriters of the IPO, the December

SPO or the April SPO. The Underwriter Defendants liability under this Count is

limited only to the Offerings they underwrote as set forth above. See supra, 40-55.

293. The Defendants named in this Count acted negligently and are therefore

liable to the members of the Class who purchased or otherwise acquired SeaWorld

common stock pursuant or traceable to the materially false and misleading IPO

Offering Materials, the December SPO Offering Materials or the April SPO Offering

10

Materials.

11

294. Plaintiffs and other members of the Class purchased or otherwise

12

acquired SeaWorld common stock pursuant or traceable to the materially false and

13

misleading IPO Offering Materials, the December SPO Offering Materials or the April

14

SPO Offering Materials.

15

295. Plaintiffs and other members of the Class purchased SeaWorld common

16

stock in the IPO, the December SPO or the April SPO pursuant to the materially false

17

and misleading Registration Statements and did not know, or in the exercise of

18

reasonable diligence could not have known, of the untruths and omissions contained

19

therein.

20

296. Plaintiffs and the other members of the Class who purchased or otherwise

21

acquired SeaWorld common stock pursuant or traceable to the materially false and

22

misleading IPO Offering Materials, the December SPO Offering Materials or the April

23

SPO Offering Materials suffered substantial damages as a result of the untrue

24

statements and omissions of material facts in the Registration Statements.

25

297. This claim is brought within the applicable statute of limitations.

26
27

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298. By virtue of the foregoing, the Defendants named in this count have

violated Section 11 of the Securities Act.

COUNT II
For Violations Of Section 12(a)(2) Of The Securities Act (Against SeaWorld, The
Underwriter Defendants And Blackstone)

4
5
6

299. Plaintiffs repeat and reallege the allegations set forth above at 1-241

and 276-86 as if fully set forth herein. For purposes of this claim, Plaintiffs expressly

exclude and disclaim any allegation that could be construed as alleging or sounding in

fraud or intentional or reckless misconduct. This claim is based solely on negligence.

10

300. This claim is brought pursuant to Section 12(a)(2) of the Securities Act,

11

15 U.S.C. 77l(a)(2), on behalf of all members of the Class who purchased or

12

otherwise acquired SeaWorld common stock pursuant or traceable to the materially

13

false and misleading IPO Offering Materials, the December SPO Offering Materials or

14

the April SPO Offering Materials against the Company, the Underwriter Defendants

15

and Blackstone

16

301. SeaWorld was a seller, offeror, and/or solicitor of sales of the common

17

stock offered pursuant or traceable to the IPO Offering Materials, the December SPO

18

Offering Materials and the April SPO Offering Materials, which contained untrue

19

statements of material fact or omitted to state material facts necessary in order to make

20

the statements, in light of the circumstances under which they were made, not

21

misleading, as set forth more fully above.

22

302. Blackstone was a seller, offeror, and/or solicitor of sales of the common

23

stock offered pursuant or traceable to the IPO Offering Materials, the December SPO

24

Offering Materials and the April SPO Offering Materials, which contained untrue

25

statements of material fact or omitted to state material facts necessary in order to make

26
27

155
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the statements, in light of the circumstances under which they were made, not

misleading, as set forth more fully above.

303. The Underwriter Defendants were sellers, offerors, and/or solicitors of

sales of the common stock offered pursuant or traceable to the IPO Offering Materials,

the December SPO Offering Materials and the April SPO Offering Materials, which

contained untrue statements of material fact or omitted to state material facts necessary

in order to make the statements, in light of the circumstances under which they were

made, not misleading, as set forth more fully above.

304.

Plaintiffs and other members of the Class purchased or otherwise

10

acquired SeaWorld common stock pursuant or traceable to the materially false and

11

misleading IPO Offering Materials, the December SPO Offering Materials or the April

12

SPO Offering Materials and did not know, or in the exercise of reasonable diligence

13

could not have known, of the untruths and omissions contained therein.

14

305. Members of the Class who purchased or otherwise acquired SeaWorld

15

common stock pursuant or traceable to the materially false and misleading IPO

16

Offering Materials, the December SPO Offering Materials or the April SPO Offering

17

Materials and still hold that stock have sustained substantial damages as a result of the

18

untrue statements of material facts and omissions in the Registration Statements, for

19

which they hereby elect to rescind and tender their common stock to the Defendants

20

sued in this count in return for the consideration paid with interest. Those members of

21

the Class who have already sold their stock acquired in the IPO, the December SPO or

22

April SPO pursuant to the materially false and misleading Registration Statements are

23

entitled to rescissory damages from Defendants.

24

306. This claim is brought within the applicable statute of limitations.

25
26
27

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1
2
3
4
5

307. By virtue of the foregoing, the Defendants named in this count have
violated Section 12(a)(2) of the Securities Act.
COUNT III
For Violations Of Section 15 Of The Securities Act
(Against The Individual Defendants And Blackstone)

308. Plaintiffs repeat and reallege the allegations set forth above at 1-241

and 276-86 as if fully set forth herein. For purposes of this claim, Plaintiffs expressly

exclude and disclaim any allegation that could be construed as alleging or sounding in

fraud or intentional or reckless misconduct. This claim is based solely on negligence.

10

309. This Count is asserted against the Individual Defendants and Blackstone

11

for violations of Section 15 of the Securities Act, 15 U.S.C. 77o, on behalf of all

12

members of the Class who purchased or otherwise acquired SeaWorld common stock

13

pursuant or traceable to the materially false and misleading IPO Offering Materials, the

14

December SPO Offering Materials or the April SPO Offering Materials.

15

310. At all relevant times, these Defendants were controlling persons of the

16

Company within the meaning of Section 15 of the Securities Act. Atchison, at the time

17

of the filing of the Registration Statements, served as Chief Executive Officer,

18

President and Director of SeaWorld. Heaney served as Chief Financial Officer of

19

SeaWorld at the time of the filing of the Registration Statements. Swanson served as

20

Chief Accounting Officer of SeaWorld at the time of the filing of the Registration

21

Statements. DAlessandro, McEvoy, Wallace, Baratta, McHale and Thomas served as

22

Directors of SeaWorld at the time of the filing of certain Registration Statements.

23

Blackstone owned a majority of the voting power of all outstanding shares of the

24

Companys common stock at the time of the filing of the IPO Offering Materials, such

25

that SeaWorld was a controlled company within the meaning of the corporate

26
27

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governance standards of the New York Stock Exchange. After the completion of the

December SPO, Blackstone no longer owned a majority of SeaWorlds outstanding

common stock, and thus, SeaWorld was no longer a controlled company within the

meaning of the NYSE corporate governance standards; however, SeaWorld stated that

Blackstone will continue to be able to significantly influence [SeaWorlds]

decisions.

Materials.

SeaWorld made an identical statement in the April SPO Offering

311. The Individual Defendants, prior to and at the time of the Offerings,

participated in the operation and management of the Company, and conducted and

10

participated, directly and indirectly, in the conduct of SeaWorlds business affairs. As

11

senior officers, directors and/or majority shareholders of a publicly owned company,

12

the Individual Defendants had a duty to disseminate accurate and truthful information

13

with respect to SeaWorlds business, financial condition and results of operations. The

14

Individual Defendants participated in the preparation and dissemination of the

15

Offering Materials, and otherwise participated in the process necessary to conduct the

16

IPO, the December SPO and the April SPO. Because of their positions of control and

17

authority as senior officers, directors and/or majority shareholders of a publicly owned

18

company, the Individual Defendants were able to, and did, control the contents of the

19

Offering Materials, which contained materially untrue information.

20

312. By reason of the aforementioned conduct, the Individual Defendants are

21

liable under Section 15 of the Securities Act jointly and severally with and to the same

22

extent as SeaWorld is liable under Sections 11 and 12(a)(2) of the Securities Act, to

23

Plaintiffs and members of the Class who purchased or otherwise acquired SeaWorld

24

common stock pursuant or traceable to the materially false and misleading IPO

25
26
27

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Offering Materials, the December SPO Offering Materials or the April SPO Offering

Materials.

3
4
5
6

B.

Claims Brought Pursuant To The Exchange Act

COUNT IV
For Violations Of Section 10(b) Of The Exchange Act And Rule 10b(5)
Promulgated Thereunder
(Against SeaWorld, Atchison, Heaney and Swanson)

281. 313. Plaintiffs incorporate by reference and reallege all preceding

paragraphs as if fully set forth herein. This claim is brought against SeaWorld,

Atchison, Heaney and Swanson and the Individual Defendants pursuant to Section

10

10(b) of the Exchange Act, 15 U.S.C. 78(j)(b), and Rule 10b-5 promulgated

11

thereunder, 17 C.F.R. 240.10b-5, by Plaintiffs on behalf of themselves and all other

12

members of the Class.

13

282. 314. During the Class Period, SeaWorld, Atchison, Heaney and Swanson

14

and the Individual Defendants used the means and instrumentalities of interstate

15

commerce, the U.S. mails, and the facilities of a national securities exchange to

16

knowingly and/or recklessly make and/or approve the materially false and misleading

17

statements and omissions of material fact alleged herein to: (i) deceive the investing

18

public, including Plaintiffs and the other Class members; (ii) artificially inflate and/or

19

maintain the market price of SeaWorlds common stock; and (iii) cause Plaintiffs and

20

the other members of the Class to purchase or otherwise acquire SeaWorld common

21

stock at artificially inflated prices. In furtherance of their unlawful scheme, plan, and

22

course of conduct, SeaWorld, Atchison, Heaney and Swanson and the Individual

23

Defendants took the actions alleged herein.

24

283. 315. While in possession of material adverse non-public information,

25

SeaWorld, Atchison, Heaney and Swanson and the Individual Defendants,

26
27

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individually and in concert, directly and indirectly, by the use of means and

instrumentalities of interstate commerce, the U.S. mails, and the facilities of a national

securities exchange: (i) employed devices, schemes, and artifices to defraud; (ii) made

untrue statements of material fact and/or failed to disclose material facts necessary to

make the statements that they made not misleading; and (iii) engaged in acts, practices,

and a course of business that operated as a fraud and deceit upon the purchasers of the

Companys common stock in an effort to maintain artificially high market prices for

SeaWorld common stock, in violation of Section 10(b) of the Exchange Act and Rule

10b-5 promulgated thereunder. As alleged herein, the material misrepresentations

10

contained in, or the material facts omitted from, these Defendants public statements

11

included, but were not limited to, materially false and/or misleading representations

12

and omissions during the Class Period regarding the impact (or purported lack thereof)

13

of Blackfish and the negative publicity created by the film on the Companys business

14

and attendance.

15

Defendants are sued as primary participants in the wrongful conduct alleged herein.

SeaWorld, Atchison, Heaney and Swanson and the Individual

16

284. 316. By virtue of their high-level positions at the Company during the

17

Class Period, Atchison, Heaney, and Swansonthe Individual Defendants were

18

authorized to make public statements, and made public statements during the Class

19

Period on SeaWorlds behalf. These Defendants also were privy to and participated in

20

the creation, development, and issuance of the materially false and misleading

21

statements alleged herein, and/or were aware of the Companys and their own

22

dissemination of information to the investing public that they either knew, or

23

recklessly disregarded, was materially false and misleading.

24

285. 317. In addition to the duties of full disclosure imposed on SeaWorld,

25

Atchison, Heaney and Swanson and the Individual Defendants as a result of making

26
27

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affirmative statements and reports to the investing public, these Defendants also had a

duty to disclose information required to update and/or correct their prior misstatements

and/or omissions, and to update any statements or omissions that had become false or

misleading as a result of intervening events. Further, SeaWorld, Atchison, Heaney and

Swanson and the Individual Defendants had a duty to promptly disseminate truthful

information that would be material to investors in compliance with the integrated

disclosure provisions of the SEC, as embodied in SEC Regulation S-X (17 C.F.R.

Section 210.01, et seq.) and Regulation S-K (17 C.F.R. Section 229.10, et seq.), as well

as other SEC regulations, including accurate and truthful information with respect to

10

the Companys operations, so that the market price of the Companys common stock

11

would be based on truthful, complete, and accurate information. Atchison and Heaney

12

also had duties under the Sarbanes-Oxley Act of 2002 to ensure that SeaWorlds Forms

13

10-Q and 10-K filed with the SEC did not misrepresent or omit any material facts.

14

286. 318. SeaWorld, Atchison, Heaney and Swanson and the Individual

15

Defendants had actual knowledge of the misrepresentations and omissions of material

16

facts set forth herein, or acted with reckless disregard for the truth in that they failed to

17

ascertain and to disclose such facts, even though such facts were readily available to

18

them.

19

knowingly or recklessly, and for the purpose and effect of concealing the truth with

20

respect to SeaWorlds operations, business, performance, and prospects from the

21

investing public and supporting the artificially inflated price of its common stock.

These Defendants material misrepresentations and omissions were done

22

287. 319. The dissemination of the materially false and misleading information

23

and failure to disclose material facts, as set forth above, artificially inflated the market

24

price of SeaWorlds common stock during the Class Period. In ignorance of the fact

25

that the market prices of SeaWorlds common stock were artificially inflated, and

26
27

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relying directly or indirectly on the materially false and misleading statements made by

SeaWorld, Atchison, Heaney and Swanson and the Individual Defendants, and on the

efficiency and integrity of the market in which the Companys common stock trades,

or on the absence of material adverse information that was known to or recklessly

disregarded by SeaWorld, Atchison, Heaney and Swanson and the Individual

Defendants but not disclosed in public statements by these Defendants during the Class

Period, Plaintiffs and the other members of the Class purchased SeaWorlds common

stock during the Class Period at artificially inflated prices.

misrepresented and/or concealed material facts eventually emerged, the price of

10

As the previously

SeaWorlds common stock substantially declined.

11

288. 320. At the time of the material misrepresentations and omissions alleged

12

herein, Plaintiffs and the other members of the Class were ignorant of their falsity, and

13

believed them to be true. Had Plaintiffs and the other members of the Class known the

14

truth with respect to the business, operations, performance, and prospects of SeaWorld,

15

which was misrepresented and/or concealed by SeaWorld, Atchison, Heaney and

16

Swanson and the Individual Defendants, Plaintiffs and the other members of the Class

17

would not have purchased SeaWorlds common stock, or if they had purchased such

18

stock, would not have done so at the artificially inflated prices that they paid.

19

289. 321. By virtue of the foregoing, SeaWorld, Atchison, Heaney and

20

Swansonthe Individual Defendants have violated Section 10(b) of the Exchange Act,

21

and Rule 10b-5 promulgated thereunder.

22
23
24
25
26
27

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1
2

COUNT VII
For Violations Of Section 20(a) Of The Exchange Act
(Against Atchison, Heaney Swansonthe Individual Defendants and Blackstone)

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

290. 322. Plaintiffs repeat and reallege each and every allegation contained
above as if fully set forth herein. This Claim is brought against the Individual
Defendants Atchison, Heaney, Swanson and Blackstone pursuant to Section 20(a) of
the Exchange Act, 15 U.S.C. 78t(a) by Plaintiffs on behalf of themselves and all other
members of the Class.
291. 323. During the Class Period, Atchison, Heaney, and Swansonthe
Individual Defendants were senior executive officers of SeaWorld and were privy to,
and monitored, confidential and proprietary information concerning SeaWorld, and its
business, operations, performance, and future prospects, including its compliance with
applicable federal, state, and local laws and regulations.
292. 324. Because of their high-level positions at SeaWorld, Atchison,
Heaney, and Swansonthe Individual Defendants had regular access to non-public
information about its business, operations, performance, and future prospects through
access to internal corporate documents and information, conversations, and
connections with other corporate officers and employees, attendance at management
meetings and meetings of the Companys Board of Directors and committees thereof,
as well as reports and other information provided to him or her in connection therewith.
293. 325. Atchison, Heaney and SwansonThe Individual Defendants acted in
concert and each was a controlling person of SeaWorld within the meaning of Section
20(a) of the Exchange Act, as alleged herein. By virtue of their high-level positions,
participation in the Companys day-to-day operations, and knowledge of the
statements filed by the Company with the SEC and other statements disseminated to
the investing public, Atchison, Heaney and Swansonthe Individual Defendants had the
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power to influence and control, and did influence and control, directly or indirectly, the

day-to-day decision-making of the Company, including the content and dissemination

of the various statements Plaintiffs allege were materially false and misleading and/or

omitted material facts. Atchison, Heaney, and SwansonThe Individual Defendants

were each provided with, or had unlimited access to, copies of the Companys reports,

press releases, public filings, and other statements alleged by Plaintiffs to have been

misleading prior to and/or shortly after those statements were issued, and each had the

ability to prevent the issuance of the statements or to cause the statements to be

corrected.

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294. 326. In particular, Atchison, Heaney, and Swansonthe Individual

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Defendants had direct and supervisory involvement in the day-to-day operations of the

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Company, and therefore had, or are presumed to have had, the power to control or

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influence the particular transactions giving rise to the securities violations as alleged

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herein, and exercised the same.

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295. 327. Blackstone owned a majority of the voting power of all outstanding

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shares of the Companys common stock at the time of the filing of the IPO Offering

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Materials, such that SeaWorld was a controlled company within the meaning of the

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corporate governance standards of the New York Stock Exchange.

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296. 328. As set forth above, Atchison, Heaney, Swansonthe Individual

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Defendants and SeaWorld violated Section 10(b) and Rule 10b-5 by making or causing

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to be made the materially false and misleading statements and omissions of material

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fact alleged herein. By virtue of their participation in the underlying violations of

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Section 10(b) and Rule 10b-5, Blackstone, Atchison, Heaney, and Swanson and the

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Individual Defendants are liable pursuant to Section 20(a) of the Exchange Act. As a

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direct and proximate result of these Defendants wrongful conduct, Plaintiffs and the

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Second Amended Consolidated Amended Class Action Complaint
Case No. 14-cv-2129

Case 3:14-cv-02129-MMA-KSC Document 123-1 Filed 05/31/16 Page 171 of 175

other members of the Class suffered damages in connection with their purchases

and/or acquisitions of the Companys common stock during the Class Period.

XII. XIII. PRAYER FOR RELIEF

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WHEREFORE, Plaintiffs pray for relief and judgment, as follows:


a)

Determining that this action is a proper class action, designating


Plaintiffs as class representatives under Rule 23 of the Federal
Rules of Civil Procedure and Plaintiffs counsel as Class Counsel;

b)

Awarding compensatory damages in favor of Plaintiffs and the


other Class members against all Defendants, jointly and severally,
for all damages sustained as a result of Defendants wrongdoing, in
an amount to be proven at trial, including interest thereon;

c)

Awarding Plaintiffs and the Class their reasonable costs and


expenses incurred in this action, including counsel fees and expert
fees; and

d)

Awarding all equitable and other relief as the Court may deem just
and proper.

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XIII. XIV. JURY TRIAL DEMANDED


Plaintiffs hereby demand a trial by jury on all triable claims and issues.

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Dated: February 27, 2015May 31, 2016

Respectfully Submitted,

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KIRBY NOONAN
LANCE & HOGE LLP
__/s/ Ethan T. Boyer________________
David J. Noonan (Bar No. 55966)
Ethan T. Boyer (Bar No. 173959)
350 10th Avenue, Suite 1300
San Diego, California 92101
Tel: (619) 231-8666
Fax: (619) 231-9593
165
Second Amended Consolidated Amended Class Action Complaint
Case No. 14-cv-2129

Case 3:14-cv-02129-MMA-KSC Document 123-1 Filed 05/31/16 Page 172 of 175

dnoonan@knlh.com
eboyer@knlh.com

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KESSLER TOPAZ
MELTZER & CHECK, LLP
Michael K. Yarnoff
Eric L. Zagar (Bar No. 250519)
Joshua E. DAncona
Joshua A. Materese
280 King of Prussia Road
Radnor, PA 19087
Tel: (610) 667-7706
Fax: (610) 667-7056
myarnoff@ktmc.com
ezagar@ktmc.com
jdancona@ktmc.com
jmaterese@ktmc.com
NIX, PATTERSON
& ROACH, LLP
Jeffrey J. Angelovich
Bradley E. Beckworth
3600 N. Capital of Texas Hwy.,
Suite 350
Austin, TX 78746
Tel: (512) 328-5333
Fax: (512) 328-5332
jangelovich@npraustin.com
bbeckworth@nixlawfirm.com

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-and-

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Susan Whatley
205 Linda Drive
Daingerfield, TX 75638
Tel: (903) 645-7333
Fax: (903) 645-4415
susanwhatley@nixlawfirm.com

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Case 3:14-cv-02129-MMA-KSC Document 123-1 Filed 05/31/16 Page 173 of 175

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Co-Lead Counsel for Lead Plaintiffs


and the Class

GRANT & EISENHOFER P.A.


Jay W. Eisenhofer
Jeffrey A. Almeida
485 Lexington Avenue
New York, NY 10017
Tel: (646) 722-8505
Fax: (646) 722-8501
jeisenhofer@gelaw.com
jalmeida@gelaw.com

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Counsel for Additional Plaintiffs

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Second Amended Consolidated Amended Class Action Complaint
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CERTIFICATE OF SERVICE
I hereby certify that on May 31, 2016, I authorized the electronic filing of the
foregoing with the Clerk of the Court using the CM/ECF system. Based upon the
records currently on file, the Clerk of the Court will transmit a Notice of Electronic
Filing to the following ECF registrants:
Timothy Gordon Blood
Chet A Kronenberg
Jeffrey Almeida
Bradley E. Beckworth
Jeffrey J. Angelovich
Susan Whatley
Laurence M. Rosen
Jonathan Youngwood
Michael K. Yarnoff
Joshua E. D'Ancona
Joshua A. Materese

tblood@bholaw.com
ckronenberg@stblaw.com
jalmeida@gelaw.com
bbeckworth@nixlawfirm.com
jangelovich@npraustin.com
susanwhatley@nixlawfirm.com
lrosen@rosenlegal.com
jyoungwood@stblaw.com
myarnoff@ktmc.com
jdancona@ktmc.com
jmaterese@ktmc.com

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I certify under penalty of perjury under the laws of the United States of America
that the foregoing is true and correct

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DATED: February 27, 2015May 31,


2016

/s/ Ethan T. Boyer

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Amended Complaint SeaWorld - FINAL.DOCX
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