United States District Court, S.D. California
LOU BAKER, individually and on behalf of all others similarly situated, Plaintiff,
v.
SEAWORLD ENTERTAINMENT, INC., et al., Defendants.
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
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