About Me

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I am an attorney practicing in Hartford, Connecticut. A particular focus of mine is the legal needs of the amusement and tourism industry. My focus on the amusement industry derives from my pre-law career as an operations manager with Cedar Fair Entertainment Company and Universal Orlando. Having started my career as a ride operator at Cedar Point in 1992, I progressed through the seasonal ranks and ultimately became the Manager of Ride Operations and Park Services at Worlds of Fun in Kansas City. I also worked in Universal's operations department during the construction and development of Islands of Adventure. Today, I am an active member of the New England Association of Amusement Parks & Attractions and the International Association of Amusement Parks & Attractions. I have been invited to speak at amusement industry meetings and seminars and have worked on a variety of matters relating to this industry.

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This Blog/Web Site is made available for educational purposes only as well as to give you general information and a general understanding of the law, not to provide specific legal advice (or any legal advice). By using this blog site you understand that there is no attorney client relationship between you and the Blog/Web Site publisher and / or author nor can such a relationship be created by use of his Blog / Web Site. By using thisBlog / Web Site you understand that any statement on the blog site are solely those of the author and do not reflect the views of Wiggin and Dana LLP. By using this blog site you understand that the Blog/Web Site is not affiliated with or approved by Wiggin and Dana LLP. The Blog/Web Site should not be used as a substitute for competent legal advice from a licensed professional attorney in your state or jurisdiction. This blog is not published for advertising or solicitation purposes. Regardless, the hiring of a lawyer is an important decision that should not be based solely upon advertisements.

Sunday, April 13, 2014

The SeaWorld / OSHA Ruling: How It Happened & What It Means (UPDATED 4/14/14)


SeaWorld’s killer whale trainers are out of the water, at least for performance purposes, seemingly for good.  So says the Court of Appeals for the D.C. Circuit in SeaWorld of Florida, LLC (see update below) v. Perez – the SeaWorld OSHA appeal that I have written about previously and that featured prominently in Blackfish.  As you may recall, following the death of trainer Dawn Brancheau at SeaWorld Orlando, the Occupational Health & Safety Administration (“OSHA”) investigated and issued citations requiring, as relevant to this case, that SeaWorld immediately stop allowing its trainers into the water with orcas during performances.  Pursuant to OSHA’s ruling, SeaWorld’s trainers could only interact with the whales during performances if separated by a physical barrier that would, in effect, prevent a whale from dragging a trainer into the pool as had occurred with Ms. Brancheau.

(more after the jump)

Wednesday, April 9, 2014

3 Things We Learned From Yesterday's Hearing On AB2140, The So-Called "Blackfish Bill"

Yesterday, April 8, 2014, the California State Assembly's Committee on Water, Parks, and Wildlilfe held its public hearing on AB2140, also known as the "Blackfish Bill."  The proposed bill would, prohibit the possession or use of killer whales for entertainment purposes in the State of California, would generally prohibit breeding of killer whales in California, and would require owners of killer whales to return them to the wild "where possible" - more on that in a minute - and where not possible to move them to sea pens.  Yesterday's hearing, which lasted about ninety minutes, featured prepared testimony from the bill's sponsor, Assembly Member Richard Bloom, three witnesses in support of the bill, and five witnesses in opposition to the bill.

As a purely practical matter, the end result of the hearing was not a clear victory for either the bill's supporters or its detractors.  The Committee decided to refer the bill for "interim study," which requires preparation of a comprehensive report on the proposed bill.  Once that study is complete, which is expected to take more than a year, another hearing will be convened to consider the bill again.  Thus, the bill is not dead, but it was not passed out of committee either. 

Aside from the bottom line result to defer a vote, the hearing offered some valuable insight into both side's positions, the legal merit of the bill, and the considerations that are likely to resonate with the Committee members when the next hearing occurs.  Although I could spend hours writing about any number of issues that were raised, I've decided to narrow it down to the three that resonated most with me from a legal perspective.   

Thursday, March 20, 2014

Why have I been so quiet lately?

Hi everyone!  As some of you have noticed, my blog posts came to an abrupt halt recently, as did most of my activity on The Legal Roller Coaster's Facebook page.  I thought I should take a moment to explain why (to those who don't already know), and to assure you that this is only a temporary setback.

On February 19, I was driving my 6 and 7 year old kids to school.  On the way there, an eighteen year old driver of an SUV, who was travelling in the opposite direction, lost control of her vehicle on the icy roads in West Hartford, Connecticut (my hometown) and spun into oncoming traffic.  More specifically, she spun out and ended up right in front of our car.  The accident was serious:  the other car flipped, my car was damaged badly enough that emergency responders had to cut the door off to get my son out. 

The extremely good news is that my kids escaped with relatively minor injuries - back pain, minor lacerations, some bruising.  Within a couple of weeks, they were basically back to normal.  Moreover, despite flipping, the driver of the other car (I believe) is OK as well.  Yours truly, on the other hand, wasn't quite as lucky.  I broke my C-2 vertebra in the accident and suffered some bruising on my chest, as well as some lacerations on my legs when they hit the dashboard in the collision.  The injury to my neck, while serious and extremely painful, could have been worse as C-2 fractures can (and sometimes do) cause total paralysis and / or death.  I have spent the last month recovering both in the hospital and at home, on very strong painkillers, getting used to my new rigid cervical collar that I will be wearing until May. 

So that's why I've been strangely silent these last few weeks.  I started back to work part time this week - mostly working from home when I can, but I have also been into the office for a few hours.  Work makes me extremely tired right now, but I'm getting more strength daily and I hope to resume my life relatively normally in the next couple of months.  There have been plenty of interesting topics to write about on this blog, but unfortunately, they will have to wait for the time being. 

For those of you that already knew all of this, I appreciate the support you've given me and my family very very much.  For those of you that are just learning about this, please bear with me and let me know if you have any ideas for future pieces or feel like guest-writing something on the blog.  This would be a great time if there is any interest.

Thanks.  And I'll talk to you again soon...

Sunday, January 19, 2014

GameChanger? (Part 2) - Can Ride Owners Rely On Manufacturer's Recommendations To Satisfy The ADA?



In my last piece, I told you about a recent ruling from the District Court for the Central District of California in a case called Castelan v. Universal Studios which granted judgment in Universal’s favor in a case alleging violation of the ADA brought by two disabled guests that were not permitted to ride The Mummy because they did not meet the minimum ride requirements of one functioning arm / hand and one functioning leg.  The court premised its ruling on two independent grounds.  The first, which was the subject of my last piece, was that the ADA did not require amusement ride access to guests with disabilities.  That part of the ruling is, in my opinion, as questionable as it potentially game-changing and should be taken with the proverbial grain of salt for the time being.  But the second basis for the court’s judgment was both exactly what I would have argued in Universal’s place and finally gives us some long awaited guidance.  So, let’s talk about that one and what it could mean for the industry moving forward.  A little preview – This holding might not be perfect, but I think it has a lot more legs than the first one.

Thursday, January 16, 2014

GameChanger? California Court Holds Disabled Access To Amusement Rides Not Required By The Americans With Disabilities Act



In July 2012, I told you about a lawsuit filed against Universal Studios Hollywood that I described at the time as “the most important industry lawsuit in years” and “one of the rare legal decisions that could equally impact the day-to-day operations of a small FEC and a huge multi-park resort.”  The case was Castelan v. Universal Studios, filed in the U.S. District Court for the Central District of California.  Why was it such a big deal?  Because it was poised to be the first case to squarely put at issue the extent to which the Americans With Disabilities Act requires amusement facilities to allow ride access to disabled guests.  The ADA has been around for more than two decades, but surprisingly there are no cases that have spoken to this particular issue.  On January 10, the court issued a ruling granting judgment in favor of Universal Studios finding, essentially, that an operator of an amusement ride may exclude disabled guests for virtually any reason without violating the ADA.  The decision is remarkable in that it flies in the face of long standing consensus belief  – even in the amusement industry – about the ADA.  Is it a game changer for the amusement industry?  Could be.  But don’t everyone get too excited just yet.    

Sunday, December 29, 2013

Blackfish / White Lies? (An Epilogue): Responding To Your Comments



 

I lied.  I said my last post was my last foray into Blackfish.  But, I have been inundated with so many emails and comments that I thought I should write one last piece to address some of these points raised either publicly or privately.  First, let me say how grateful I am for most of the comments, even those that clearly think that I have missed the point of Blackfish (and, not surprisingly, there are quite a few of you out there).  The point of this blog is to generate discussion and debate and to provide information and opinion about the amusement industry to those that are interested, and those goals seem to have been achieved in this series.  But, having read hundreds of emails, comments, tweets, and Facebook posts about these pieces, I have seen some common themes emerging that deserve to be addressed - I just don't have time to address them individually.  So I thought it made more sense to post one last piece.  I wouldn't, after all, want anyone to think I was ignoring them.

Saturday, December 21, 2013

Blackfish / White Lies? (Pt. 3): Undisclosed Facts & Muddled Messages




So here we are (a little later than originally planned), the final piece of this series, and my last foray into Blackfish until, perhaps, the DC Circuit Court of Appeals rules on SeaWorld's OSHA appeal sometime in the coming months.  In the time since the first two pieces of this series hit the blogosphere, Blackfish has moved from near-nightly airings on CNN to on-demand availability on Netflix.  Additionally, the film has stayed in the headlines due, in no small part, to the recent media attention surrounding the decision of several musical acts to cancel their appearances at SeaWorld in an apparent act of protest.  It is clear that the “Blackfish effect” is powerful both in its message and its longevity.  But what is its message exactly?  And do the facts presented in Blackfish support that message in a fashion that lives up to the claim of its director, Gabriala Cowperthwaite, that the film is nothing more than a “truthful, fact driven narrative” that errs “on the side of the journalistic approach”and is, in fact, “not at all advocating for anything.”  My belief is that Blackfish itself plainly belies any contention that the film is anything other than a piece of animal-rights advocacy – one sided in both fact and presentation.   

In the first two pieces in this series I looked at the people involved in Blackfish, many of whom have undisclosed (and sometimes radical) animal-rights agendas, and the filmmaking techniques used to steer the viewer toward one, and only one, position.   To finish, I thought we should take a closer look at Blackfish’s substance - the claims it makes and its overall message. 


Remember, Blackfish is being passed off by its director as erring “on the side of the journalistic approach.”  That means that its statements should comply with journalistic standards:  they should be fact checked, unambiguous, and not misleading.  Why is that important?  Because if the film conveys a false factual impression or is inaccurate or untruthful as to even a single point, it can (and does) degrade the credibility of the film as a whole.  To continue the analogy from Part 1 of this series, this film is, in essence, the star witness in the Court of Public Opinion's trial of SeaWorld.  The audience must, therefore, assess its credibility as to the facts presented, just as it would any other witness.  A falsehood, even a little white lie, calls into question the rest of what the film says.  If the film lies about little things, the audience - the jury in the Court of Public Opinion - has a right to wonder whether the film is lying about bigger things too.  

Saturday, November 9, 2013

Blackfish / White Lies? (Pt. 2): The Art Of Advocacy Film-Making





I had to decide that my structure was going to be to tell the truthful, fact-driven narrative from beginning to end, following Tilikum’s trajectory through the eyes of the former trainers, that I can just tell the truth and lay out the facts.  Someone said that if you try too hard to do “on the one hand, but then on the other hand,” you may become faithless to the truth.  And so, if I just promise myself that I would not sensationalize, not shoehorn information in there that will manipulate people into feeling things and stick to the fact-driven story, then that is a story that people need to hear.“
Gabriela Cowperthwaite, describing Blackfish (available at http://collider.com/gabriela-cowperthwaite-jeffrey-ventre-blackfish-interview/).  

Is this accurate?  Is Blackfish really just an un-sensationalized piece of documentary film-making that doesn’t try to “manipulate people into feeling things?”  Does Blackfish simply “stick to a fact-driven story?”  That’s the question and the point of this series.  Ms. Cowperthwaite has given interviews to at least two media outlets claiming that Blackfish is just a straightforward presentation of “fact driven narrative,” without advocacy.  I do not see how that can be a credible claim given the inherent bias of the people involved (the discussion of my last entry), the structure and film-making tricks used seemingly for the sole purpose of “manipulate[ing] people” into considering only one side (the subject of this piece), and the inconsistent and sometimes demonstrably incorrect statements presented in the film (the subject of the next, and last, piece).  


Wednesday, November 6, 2013

Blackfish / White Lies? (Pt. 1): Sorry, I Forgot To Mention, They're All Activists







“Proof of bias is almost always relevant because the jury, as finder of fact and weigher of credibility, has historically been entitled to assess all evidence which might bear on the accuracy and truth of a witness' testimony.”

United States v. Abel, 469 U.S. 45, 52 (1984). 

Former Chief Justice of the United States Supreme Court William Rhenquist wrote these words nearly 30 years ago.  They are as true in the Court of Public Opinion as they are in a court of law.  Blackfish has a lot of “testimony” that is presented without any hint of potential bias – quite the opposite actually.  Director Gabriela Cowperthwaite strongly suggests the outright credibility of most of the people who appear in the film.  After all, who better to speak about what is going on with SeaWorld’s whales than a bunch of ex-trainers who spent years working with them?  Who better to explain the science behind orca behavior and biology than experts in the field and a neuroscientist who has studied the brain of a killer whale up close?  Since Blackfish provides no background on any of these individuals, other than what is necessary to establish their credibility, the “jury” in the Court of Public Opinion is left with nothing to assess the true credibility of their “testimony.”  In a court of law, questions of bias are raised through cross examination.  Similarly, in true journalistic pieces, the journalist “cross examines” his or her source by, for example, playing the “devil’s advocate” and challenging them to explain, debunk, or address potential sources of bias.  Cross examination and journalistic honesty are vital tools that allow the audience to decide for themselves whether what is being said is “the truth, the whole truth, and nothing but the truth.”  But in Blackfish, there is no “cross examination” of the "witnesses" the "jury" is expected to believe.  Consequently, it is easy to view Blackfish as telling its story though an objective lens.  But that’s just not the case.

Monday, November 4, 2013

Blackfish / White Lies? (A Prologue)



Click here to read Blackfish / White Lies (An Epilogue):  Responding To Your Comments


In Blackfish, director Gabriela Cowperthwaite has given the world a very effective and compelling piece of film-making.  While I was not able to catch this documentary in the theaters during its limited release last summer, I was able to catch it on CNN earlier this week and, as a lawyer, I am compelled to admit to some appreciation for the work that was done.  Blackfish is disturbing and, at times, difficult to watch.   It makes a compelling visceral argument against killer whale captivity in general and against SeaWorld in particular.  It is a film that stays with you after you watch it.  It is one of the better pieces of advocacy that I’ve seen in recent years, and, particularly given my interest and involvement in this industry, it made me want to read a bit more.  And that’s when I came across this quote from a recent interview given by Ms.Cowperthwaite:

[T]he film is not at all advocating for anything. That’s what some people have a hard time with. [They ask], “Where’s the 1-800 number at the end of the film?” You know, where you need to prescribe something we can do. I deliberately chose not to do that. What I did choose to do was to tell the story, and that’s all I was really equipped to do. … So I really truly believe that I err on the side of the journalistic approach, not the advocacy approach. I think that for me, I had to come to my conclusions by really reviewing the facts.  I kept everybody at bay because [I] didn’t want to be influence[d] by any kind of agenda and I just kind of stuck with the story.

(More after the jump)