01.08.13

The ASPCA Pays Price For Bad-Faith Ringling Brothers Elephant Suit

The ASPCA sued Ringling Brothers, but ended up paying the circus $9.3 million to help cover its legal bills. Paul Alexander reports.

Who hasn’t seen the television commercials for animal groups? With heart-touching music playing behind a montage of sad-looking dogs and cats, an announcer pleads for contributions to “save” the animals. No organization runs more of these highly effective ads than the American Society for the Prevention of Cruelty to Animals. Many contributors agree to donate $18 a month, helping the ASPCA to bring in $111.3 million for the year ending June 2010.

As 2012 came to an end, however, what the ASPCA did not advertise was the fact that, on December 26, $9.3 million in contributions did not go to “save” animals but to Feld Entertainment, the family-controlled company that since 1967 has owned Ringling Brothers and Barnum & Bailey Circus, which has been in continuous operation since 1919. In settling its lawsuit against “The Greatest Show on Earth,” the ASPCA was admonished by the judge hearing the case that it should have never been filed in the first place, primarily because the group used a paid plaintiff.

To be sure, there’s big money in animal welfare advocacy. During the same period the ASPCA raked in its haul, the Humane Society of the United States  brought in even more: $131.2 million.  Smaller groups also raised notable amounts: $5.8 million for the Fund for Animals; $2.8 million for the Animal Welfare Institute, and 1.5 million for the Animal Protection Institute.

While these organizations — all tax-exempt 501(c)3s — can vary in size, their goal is the same, says Frankie Trull, a science activist and lobbyist involved in university-based animal research: “These groups believe that animals are not ours to be used to eat or wear — or for entertainment.”

Specifically, the groups believe that when a handler employs chains and a bullhook—a long cane, made of wood or fiberglass, with a sharp, curved metal end—to control an elephant, a pain-free method of guiding elephants that has been in use for decades (think guiding a dog with a leash), he is abusing the animal. But the groups needed an individual with standing to bring suit. That was Tom Rider, a former employee who worked for Ringling Brothers from June 1997 until November 1999, first as a “barn helper” and then as a “barn man,” in the Blue Unit traveling show. (A second traveling show is the Red Unit.) In essence an assistant to an elephant handler, Rider gave food and water to seven Asian elephants—Karen, Nicole, Lutzi, Zina, Mysore, Susan, and Jewell—as well as cleaning up after them.

The original lawsuit was filed on July 11, 2000 by the Performing Animal Welfare Society (PAWS) on behalf of the ASPCA, AWI, FFA, Tom Rider, and three other individuals. In December, PAWS and the three individuals dropped out, leaving Rider, ASPCA, FFA, and AWI. Using the Endangered Species Act, the complaint alleged that Ringling Brothers “takes” its Asian elephants — “take” is a general term for “harming,” “harassing,” or “wounding” — by employing chains and bullhooks on them, which in turn caused Rider to suffer “aesthetic or emotional injury” because he witnessed this behavior after developing a “strong personal attachment” to the elephants. The groups demanded that Ringling Brothers stop “taking” Asian elephants, a protected endangered species; forfeit possession of the elephants it owns (54 at present); and pay the groups’ legal fees.

“If there are no animal models, there will be far fewer medical advances. That’s why Ringling Brothers’ pushback has been so significant.”

In 2005, the Humane Society became involved in the suit when it acquired the assets of the Fund for Animals; the Animal Protection Institute joined the next year. After almost a decade of legal action—motions, appeals, hearing upon hearing, discovery—a non-jury trial took place before United States District Judge Emmet G. Sullivan in the District of Columbia in February and March of 2009.

In the trial, Tom Rider, the star witness for the plaintiffs, proved to be problematic. Even though he referred to the elephants as his “girls” and claimed to have a “personal” and “emotional” attachment to them on par with the one he had for his two daughters and his grandson, he was unable to identify the elephants in videotaped footage.

Moreover, Rider’s own employment record indicated he was not upset by the way elephants are handed in a circus. Before Ringling Brothers, he worked for Clyde Beatty-Cole Brothers Circus, where he used chains and a bullhook in handling elephants. During his two-and-a-half years at Ringling Brothers, he never complained about elephant mistreatment to the media, circus veterinarians, United States Department of Agriculture inspectors, or his supervisor. When Rider did leave Ringling Brothers, it was not because of the elephants but because the Blue Unit’s traveling show ended. Then he traveled to Europe where he handled elephants owned by Richard Chipperfield that were performing in a circus, again using chains and a bullhook.

Indeed, it was not until he quit his job with the Chipperfield elephants, traveled to London, and gave an interview to The Daily Mirror that Rider complained about the mistreatment of elephants in circuses. For the interview, Rider received hotel and living expenses and $1,100 in cash. After that, members of PAWS arranged for Rider to fly to California. From March 2000 until February 2001, PAWS paid for Rider to live in a motel in Galt, Calif., and gave him spending money. It was during this time that the lawsuit against Feld was filed, with Rider serving as a key plaintiff.

When PAWS left the litigation in December 2000, the support of Rider was taken over by the plaintiffs’ attorneys. Then, from December 2001 until January 2008, Rider was paid by the Wildlife Advocacy Project. He received $500 a week, later $1,000 every two weeks, all by check. Over six years, WAP paid Rider $165,000. Combined with monies from PAWS and other sources, Rider received more than $190,000. In addition, a van was purchased for him, and he was reimbursed for incidental expenses. From 2001 until 2006, Rider never filed taxes, so, in April 2007, when he filed returns for seven years, the IRS placed tax liens on him, which were paid off by “friends” whose identify was never disclosed.

For his compensation, the animal groups claimed Rider was performing “media work” and “educational outreach.” Judge Sullivan didn’t agree. “The Court finds that Mr. Rider is essentially a paid plaintiff and fact witness,” Sullivan stated in a decision handed down in December 2009, “who is not credible, and therefore affords no weight to his testimony regarding the matters discussed herein.” Sullivan ruled in favor of the circus.

As discovery proceeded, it became apparent to Feld’s attorneys that the plaintiffs had engaged in a highly organized effort to fund their key plaintiff. “We found 1,360 examples of predicate acts that constituted racketeering activity,” says John Simpson, Feld’s lead attorney at Fulbright & Jaworski LLP. In August 2007, Feld filed a RICO action against the plaintiffs who sued them. That action is now pending, no doubt one reason why the ASPCA settled. Twelve parties—the animal groups and their attorneys—remain defendants in the RICO case.

Over 12 years, Feld spent $22 million on legal fees. The $9.3 million from the ASPCA offsets a portion of that, but Feld seeks to recover the rest of the fees—but no damages—from the remaining RICO defendants. “This marks a significant step for Feld Entertainment in its quest to obtain justice in this case,” Simpson says of the settlement. “The amount suggests their understanding of the seriousness of their predicament.”

But the elephant suit, says Frankie Trull, was just one front in a systematic campaign against organizations that use animals, even for research purposes—the Humane Society, to give but one example, is currently lobbying for all chimpanzees to be banned in bio-medical research—that would have a chilling effect on research into illnesses like Parkinson’s disease and Alzheimer’s disease. “If there are no animal models,” she says, “there will be far fewer medical advances. That’s why Ringling Brothers’ pushback has been so significant. Now others may think it’s not a lost cause to do something legally.”

As for the ASPCA, it released a statement confirming that “it has reached a settlement and is ending 12 years of litigation with Feld Entertainment.” It did not mention that it was the ASPCA that started the litigation, only that they wanted to return to their “life-saving work, preventing cruelty and improving the welfare of animals.”

Then again, all the ASPCA had to do was look internally to see that suing Feld might not have been justified. On May 5, 1996, the ASPCA’s Kathi Travers wrote to Ringling Brothers, praising the circus for “the magnificent job you are doing at the new elephant breeding facility” and for “the professional and extremely humane conditions” provided for the elephants. In addition, when Ringling Brothers performs at Madison Square Garden and Nassau County Coliseum, they are monitored by a humane law-enforcement division of the ASPCA, which has routinely given the circus glowing reports. This means that during the 12 years of litigation brought by the ASPCA against Feld for mistreatment of elephants, in two of the nation’s most prominent venues, the safety inspection of those elephants was actually conducted by the ASPCA.

Yet neither incongruities such as this one—nor legal setbacks—have deterred the animal groups. In Los Angeles, the groups have found a friend in Paul Koretz, a City Council member who, later this year, plans to sponsor an ordinance banning the appearance of elephants in circuses in the nation’s second-largest city.