The Humane Society's Jumbo Problem

They manufactured a legal controversy and paid payola to a liar for hire. Now the Humane Society of the U.S. is looking down the barrel at a civil RICO lawsuit and a $20 million liability, and there's a very good chance they will lose.

I have gotten six emails from folks wanting me to know that the Humane Society of the U.S. (HSUS) is finally being prosecuted.

Eh? It is? For what?  Oh you mean this?

Right. 

I knew about the case but, in truth, I had lost track of it over the course of the last ten years of litigation.  It's still going on?  Amazing!

Before we get too far down the road, a little background.

HSUS, the ASPCA, the Fund for Animals, the Animal Protection Institute, and the Animal Welfare Institute sued Feld Entertainment and Ringling Brothers and Barnum & Bailey Circus for animal abuse as it relates to the treatment of elephants.

Though HSUS did not win their legal case (more on that in a second), there is no question that elephants have been abused by circuses in the past, including various permutations of the Ringling Brothers operation.

Is that abuse still going on? Well, that depends on how you define abuse, but yes there are still some animal management problems at Ringling.  As CNN reported in November of last year in an article entitled "USDA fines Ringling Bros. Circus over treatment of animals":

The U.S. Department of Agriculture has slapped the parent company of the "Greatest Show on Earth" with a record penalty for alleged animal rights violations. Feld Entertainment Inc., which produces the Ringling Bros. and Barnum & Bailey Circus, has agreed to pay $270,000 for allegedly violating the Animal Welfare Act on several occasions from June 2007 to August 2011, according to a USDA news release. The USDA can levy fines of up to $10,000 per violation of the act.

Were these fines over elephant abuse?  No, not exactly.

Reports compiled by the USDA’s Animal and Plant Health Inspection Service describe cuts on elephants’ faces from sharp edges in bolts in transport trailers. A 35-year-old Asian elephant named Banko allegedly was forced to perform in Los Angeles despite a diarrhea attack, and a zebra escaped a protective fence and ended up on a major roadway in Atlanta.

So yes, some judgement problems.  Some transportation problems.  But no horrific abuse of elephants according to the USDA, which looked into the matter.

So what was the HSUS/ ASPCA lawsuit all about?

We'll get to that in minute.  First, however, let's talk about why the case was tossed. 

This case was not tossed on facts, but on standing -- the parties bringing the suit could not show how they were harmed by the conduct.

Standing is not a small thing, and it is pretty fundamental to bringing a case, but it is also not transparently clear.

The Supreme Court, rather famously ruled that Sierra Club members have standing in a dispute about trees if they can show their members enjoy trees, and their recreational and aesthetic interests would be destroyed by rapacious logging and development.

Right. 

So the Sierra Club can speak for trees.

Who speaks for the elephants?

It's a reasonable question to take to the courts, as is the issue of elephant abuse, if and when it exists.

So how did this HSUS/ASPCA lawsuit against Ringling Brothers fail, and what was it all about?

Mostly it was about contrived controversy, and mostly it failed because of a very bad witness by the name of Tom Rider.

Rider was an elephant “barn helper” for Ringling who put himself out there as a "whistleblower" but who, in fact, had enormous credibility problems.

Rider claimed he had a deep emotional and aesthetic bond to the elephants he handled during his years at Ringling, and that he continued to be harmed whenever he saw the elephants because he could tell they were being "abused" by the use of bullhooks and ankle-security chains.

The problem was that almost everything that came out of Rider's mouth was a lie.  As U.S. District Judge Emmet G. Sullivan Jr. noted in his dismissal of the case on standing grounds:

"Mr. Rider’s self-serving testimony at trial about his personal and emotional attachment to these elephants ...is not credible because he did not begin to make complaints about how [Ringling Brothers and Feld Entertainment] treated its elephants until after he began accepting money from animal activists...

Other than these payments, which have totaled at least $190,000 and have flowed to Mr. Rider in an uninterrupted stream from March 2000 through at least December 31, 2008, Mr. Rider has had no other source of income or financial support. While the Court recognizes that Mr. Rider has performed some media and outreach services for the organization plaintiffs, the claim that this money was solely for Mr. Rider’s “media work” is not credible. Based on the evidence in this case, the purported “media work” does not explain the money that the organizational plaintiffs, their lawyers and related entities paid to Mr. Rider.

This lawsuit could not have been maintained without Mr. Rider’s participation as a plaintiff, and the payments to him are linked directly to the litigation itself. The Court concludes that the primary purpose of the funds paid to Mr. Rider was to secure and maintain his participation in this lawsuit and were not legitimate reimbursements for bona fide media expenses."

Ouch.

To be clear, it was Rider's own testimony that exposed him as someone with no genuine concern for the elephants, who only raised the issue of elephant abuse after he was paid, and who went on to use bullhooks and chains on other elephants after he left Ringling Brothers.

Which leads to several reasonable questions:

• At what point did the HSUS and the ASPCA, the Fund for Animals, the Animal Protection Institute, and the Animal Welfare Institute come to realize this guy was a fraud?
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• At what point did these animal rights organizations discuss whether they were, in fact, paying someone to file a case, if not actually paying him to suborn perjury?

It should be noted that Judge Sullivan initially accepted Rider as a complainant.

And why not? The standard for aesthetic enjoyment and emotional attachment to an elephant would seem to be pretty low and hard to quantify.

If Rider said he was aesthetically and emotionally attached to the elephants, the court reasonably assumed he was, and that HSUS and the other animal rights organizations would have careful vetted him since so much of their case depended on his claims.

But nope.

What the court could not have know, at the beginning, was that the whole thing was a sham and that Rider was simply a paid liar who feigned his aesthetic concern for the elephants, and who had no emotional distress at all when it came to the use of bullhooks and restraining chains.  As the court noted:

Plaintiffs failed to prove that Mr. Rider left his job at FEI [Feld Entertainment Inc.] because of the mistreatment of the elephants. To the contrary, Mr. Rider did not complain about elephant mistreatment to management during the nearly two and a half years he was employed by FEI, nor did he complain to the veterinarians who cared for the elephants, nor to any federal or state authorities, nor did he approach the media regarding the alleged mistreatment. Mr. Rider had a meeting with the Unit Manager on the day he left FEI, and he did not complain about the alleged mistreatment; even in the months after Mr. Rider left FEI, he did not complain to federal or state authorities or approach the media about the alleged mistreatment; Mr. Rider left FEI to work with Mr. Raffo in another circus, despite that Mr. Rider claims Mr. Raffo was one of the handlers who regularly mistreated the elephants on the Blue Unit, Mr. Rider himself has used a bullhook and he left to work with Mr. Raffo knowing that Mr. Raffo would “force” him to use a bullhook on the elephants while in Europe….

While Mr. Rider claimed in pleadings and filings in this Court and the D.C. Circuit that he was refraining from visiting his “girls” in order to spare himself further aesthetic injury and that he would frequently visit his “girls” if they were no longer with FEI, those claims were false. Shortly after he began taking money from the organizational plaintiffs and/or their counsel (and his), Mr. Rider began following FEI’s circus units and observing the elephants, including elephants on the Blue Unit.. Therefore, contrary to his representations to the Court, Mr. Rider was not refraining from seeing his “girls.” Moreover, after Mr. Rider began working for animal activists, three (3) of his “girls” were donated to a sanctuary or zoo by FEI. Mr. Rider made no attempt to visit any of them until after he was deposed in October 2006 and this issue was pointed out to him; even then he still failed to visit two (2) of these elephants (Minnie and Rebecca) who were placed in a sanctuary (PAWS).

The court documents, in some detail, Mr. Rider's failure to show concern for Ringling Brother's elephants absent cash being paid by animal rights organizations.  For Mr. Rider, it seems, this litigation was always pay-to-say.

The court was not amused. 

Absent a real human being with actual experience with Ringling elephants who would express a genuine emotional and aesthetic connection to the elephants, the court could not, and would not, grant standing.  The case brought against Feld Entertainment by HSUS, the ASPCA, the Fund for Animals, the Animal Welfare Institute, and the Animal Protection Institute was dismissed.

With the case against Ringling Brothers dismissed, Feld Entertainment was now free to turn the gun around and pursue the animal rights organizations and their individual lawyers on a variety of charges.

In July, U.S. District Judge Emmet Sullivan ruled that Feld Entertainment had sufficient grounds to proceed with claims against HSUS, the ASPCA, the Animal Protection Institute, the Fund for Animals, the Animal Welfare Institute, and individual lawyers working for those organizations, on civil Racketeer Influenced and Corrupt Organizations Act (RICO) violations.

On first blush, a RICO claim seems like overkill, but once you get into the facts it does not.

HSUS, the ASPCA, the Animal Protection Institute, Fund for Animals, and the Animal Welfare Institute appear to have worked in collusion for years, and engaged in many acts of bribery and deception, all designed to end the use of circus elephants and to harm Ringling Brothers and Barnum & Bailey Circus.  Feld Entertainment's claim that the lawsuit went on for 10 years "only due to the racketeering and tortious activity" of HSUS and the other plantiffs, seems to be on solid ground.

What is the likely outcome of Feld's lawsuit?  I think, in the end, they will prevail.  It simply does not pass the laugh test for HSUS, the ASPCA, and their lawyers to say they had no idea that Tom Rider was a paid liar-for-hire being used as an anchor and a fig-leaf claimant solely for standing purposes, when these same organizations and people were making the payments and trying to hide and launder the money as well. 

In the end, I think the court is likely to force HSUS, the ASPCA, the Animal Protection Institute, the Animal Welfare Institute, and perhaps some of the individual employees of those organizations, to shoulder Feld Entertainment's decade-long legal expenses, which could easily top $20 million.

Have no illusions:  HSUS can pay it.  This organization has an enormous war chest, and neither HSUS or the ASPCA is likely to disappear from the scene simply because of the liabilities associated with this case.

That said, have no illusion: whether this case is won or lost, more than money has already flown out the window as the HSUS and the ASPCA are now fully exposed as having created a make-weight legal case whole cloth out of nothing but elephant dung, and to have maintained that case for more than a decade while clearly knowing that core elements of the case were completely manufactured by a pay-to-say witness.

The discovery and trial ahead are likely to be quite damaging to HSUS and the other animal rights organizations as their direct mail and fundraising machinations are exposed. It does not help HSUS at all that a key player at the Fund for Animals is now the chief operating officer at HSUS, or that several lawyers who were paymasters to the scheme are now in-house counsel at HSUS, or that HSUS now owns every functional asset of Fund for Animals, from logo and name, to mailing list.

The first round of respondent briefs are due to be filed in the next few days. No doubt HSUS and the ASPCA will try to slither out a rat hole on the basis of some technicality, but I think that will be difficult to do on all charges, as the scheme to defraud the court and inflict harm on Ringling Brothers and Feld Entertainment was pervassive, ongoing, well-orchestrated and involved hundreds, if not thousands, of predicate acts. I do not expect this next case to be settled in a few days or a few weeks. That said, when it is finally ajudicated, I expect we will all know a great deal more about the inner workings of the animal rights movement, and that very little of it will be complimentary.
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• Related Links:
  ** Direct Mail Economics of the Humane Movement
  ** HSUS Donors are Flushing Their Money Away
  ** The Vanishing Members of the HSUS
  ** Saving Lawyers One Direct Mail Letter at at Time