Baker v. Seaworld Entertainment, Inc.

          NOTICE AND ORDER PROVIDING TENTATIVE RULINGS RE: MOTIONS IN LIMINE [Doc. Nos. 474, 476]

          HON MICHAEL M. ANELLO UNITED STATES DISTRICT JUDGE

         On January 21, 2020 at 2:30 p.m., Lead Plaintiffs and Class Representatives Arkansas Public Employees Retirement System and Pensionskassen for Børne-Og Ungdomspædagoger (“Plaintiffs”) and Defendants SeaWorld Entertainment, Inc. (“SeaWorld”), James Atchison, James M. Heaney, Marc Swanson, and the Blackstone Group L.P. (collectively, “Defendants”) will appear before the Court for a pretrial conference and hearing on the parties' motions in limine. See Doc. Nos. 474, 476. The parties move to file under seal certain documents and exhibits in connection with their respective motions in limine, and briefs in opposition thereto. See Doc. Nos. 471, 473, 487, 488. The Court will address these motions to seal via a separate order after the pretrial conference. The Court advises counsel that the pretrial conference will not be a sealed hearing and counsel should tailor their arguments accordingly.

         In anticipation of the hearing, the Court issues the following tentative rulings on the pending motions:

         Plaintiffs' Motions

         1. The Court tentatively GRANTS Plaintiffs' motion to bifurcate trial into two phases-one for class-wide questions of Defendants' liability and the measure of damages (Phase One), and a second for Class member-specific individual issues (Phase Two). The Court tentatively finds that bifurcation promotes judicial economy and avoids prejudice. See Fed. R. Civ. P. 42(b). Counsel should be prepared to discuss the logistics of a bifurcated trial at the hearing.

         2. The Court tentatively GRANTS IN PART and DENIES AS MOOT IN PART Plaintiffs' motion to exclude evidence and argument concerning Plaintiffs and/or Class Counsel. The Court tentatively grants Plaintiffs' motion to exclude evidence and argument concerning individual issues regarding Plaintiffs or other Class Members and the absence of Plaintiffs during Phase One. The Court tentatively finds that evidence or argument concerning individual issues and the absence of Plaintiffs is irrelevant during Phase One. The Court tentatively denies as moot Plaintiffs' motion to exclude evidence or argument concerning Class Counsel and Plaintiffs' involvement in other litigation, as Defendants maintain that they do not intend to introduce such evidence or argument at trial.

         3. The Court tentatively DENIES AS MOOT IN PART and GRANTS IN PART Plaintiffs' motion to exclude evidence and argument referencing attorney advice or involvement. The Court tentatively denies as moot Plaintiffs' motion to the extent Plaintiffs seek to exclude evidence or argument concerning the substance of attorney-client communications relied upon in making the disclosures at issue in this action, as Defendants do not intend to rely on an advice of counsel defense by putting the substance of any legal advice at issue. The Court tentatively grants Plaintiffs' motion to the extent Defendants introduce evidence or argument that: (i) lawyers were involved in the disclosure process; (ii) lawyers prepared, reviewed, or approved documents, statements or conduct at issue; or (iii) Defendants relied on the advice of counsel in making the disclosures at issue. The Court tentatively finds such evidence is irrelevant. Even if such evidence is marginally relevant, the Court tentatively finds that the probative value of this evidence is substantially outweighed by the danger of unfair prejudice.

         4. The Court tentatively DENIES AS MOOT Plaintiffs' motion to exclude evidence and argument concerning SeaWorld's Special Committee Report. Defendants' third motion in limine seeks to exclude evidence of investigations by the SEC and DOJ related to SeaWorld's disclosures regarding Blackfish. Because the Court tentatively grants Defendants' third motion in limine-which is broader than the instant motion-the Court tentatively finds that Plaintiffs' motion is moot.

         5. The Court tentatively DENIES Plaintiffs' motion to: (i) pre-admit certain materials into evidence^[1]; and (ii) publish to the jury during opening statements any pre-admitted evidence. Absent a stipulation between the parties, the Court is not inclined to pre-admit materials into evidence. Additionally, it is the Court's view that opening statements are not the time to try one's case. Thus, the Court tentatively finds that it is inappropriate to publish pre-admitted evidence to the jury during opening statements. However, counsel should be prepared to discuss at the hearing the extent to which the parties seek to use demonstrative aids during their opening statements.

         6. The Court tentatively DENIES AS MOOT Plaintiffs' motion to exclude evidence and argument concerning claims or defendants that have been dismissed, and any claims or legal theories that Plaintiffs have abandoned, modified, or never asserted in this case, as Defendants do not intend to offer any such evidence or argument at trial.

         7. The Court tentatively DENIES Plaintiffs' motion to preclude live witnesses from testifying in Defendants' case-in-chief who were not made available for live testimony in Plaintiffs' case-in-chief. The Court tentatively finds that Plaintiffs' motion is premature at this stage. However, counsel should be prepared to discuss this issue in greater detail at the hearing.

         8. The Court tentatively GRANTS IN PART and DENIES IN PART Plaintiffs' motion to exclude evidence and argument concerning Defendants' ability to pay or aggregate damages. The Court tentatively grants Plaintiffs' motion to exclude evidence or argument concerning Defendants' ability to pay a damages award, as Defendants do not oppose this aspect of Plaintiffs' motion. The Court tentatively denies Plaintiffs' motion to exclude any reference at trial to aggregate damages as overbroad. Defendants do not intend to offer a precise calculation of the potential aggregate recovery at trial. However, the Court tentatively finds that Defendants should not be precluded from explaining that the total recovery of the class will be larger than the single-digit per-share figure calculated by Plaintiffs' expert.

         9. The Court tentatively DENIES Plaintiffs' motion to prohibit counsel from communicating ex parte with sworn witnesses about his or her testimony until it is completed. The Court tentatively finds that a ban on attorney-witness communications about their testimony is premature at this stage. The parties may raise specific concerns at trial, if necessary.

         10. The Court tentatively GRANTS IN PART and DENIES IN PART Plaintiffs' motion to prohibit any party from disputing or otherwise objecting to the authenticity of materials that party produced during discovery. The Court tentatively grants Plaintiffs' motion, as Defendants indicate that they are willing to stipulate to the authenticity of documents that SeaWorld created and produced in discovery. The ...