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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Wednesday, August 31, 2011

"Cause" for Alarm: 3 Ways To Reduce The Chance Of A Public Interest Lawsuit

Two news items that, on the surface at least, do not seem to have much in common caught my eye this week.  First, USA Today reported that Cedar Point has decided to change the names of two of its Halloween attractions, apparently due to complaints from the National Alliance on Mental Illness (“NAMI”).  According to media reports, NAMI took issue with a haunted house called “Dr. D. Menteds Asylum for the Criminally Insane” and a musical show entitled “The Edge of Madness:  Still Crazy,” claiming that they promoted false stereotypes of the mentally ill.   

Second came news yesterday about the temporary closure of Rye Playland due to a disturbance that occurred when a Muslim woman wearing a head scarf, or hijab, was not allowed to board a ride due to a rule prohibiting any kind of headwear while riding.  The park reportedly had many Muslim guests in attendance celebrating Eid-ul-Fitr -  the holiday marking the end of the Islamic holy month of Ramadan.  While some guests at the park, not to mention the president of the Council on American-Islamic Relations - New York, believe this to be an example of Islamic intolerance, the park maintains (quite reasonably I believe) that this is a safety issue of general applicability to prevent hats and other headwear from becoming projectiles that could presumably hit other guests, become entangled in machinery, or cause shutdowns. 

Was Cedar Point right to change the names of its attractions to placate the protestations from NAMI?  Should Rye Playland have altered its headwear policy after hearing claims of perceived religious intolerance?  The answers to these questions highlight the fine line an amusement facility must walk when dealing with a “cause.”  Whether they be social, religious, human rights, animal rights, or any other “cause,” the legal, financial, and public relations impact of these interactions must be handled appropriately to avoid potentially disastrous results.


From a legal standpoint, litigating with a cause requires considerable change to the typical approach to a case.  In the usual personal injury, product liability, or contract matter, the bottom line is very straightforward:  money.  And, because of this, 98% of typical cases never make it to trial.  Most reasonable, rational parties to a typical lawsuit recognize the tremendous time and expense involved in taking a case all the way to trial and realize that it is in everyone’s best interest to simply settle the case and move on with life.  The problem with a “cause,” however is that they aren’t always reasonable and rational, at least not in the same way typical litigants are. 

In cases involving a “cause” it's simply not about the money – its about principle.  This makes negotiating a settlement very challenging because its often not enough to simply decide on a sum of money that will leave no one truly happy, but everyone somewhat satisfied.  A “cause” wants to change behavior and / or draw attention to an issue and, thus, generally does not care how much money is waved in front of it.  A “cause” doesn't quit until either a court leaves it no choice or its objectives are achieved.  This makes the “cause” a very dangerous adversary to be avoided if at all possible. 

The 2009 decision in ASPCA v. Feld Entertainment illustrates the point to perfection.  In that case, the plaintiffs, a collection of numerous animal rights organizations and an individual formerly employed by Feld Entertainment-owned Ringling Brothers and Barnum & Bailey Circus, sued Feld Entertainment in an attempt to stop Feld’s use of Asian elephants in its circus productions.  As the court noted in its decision, the case went on for nine years, involved at least seventeen attorneys from some very high profile (and expensive) law firms, and, involved “highly litigious, complex and protracted discovery and motions practice” (an assessment the judge characterized as “profoundly understat[ing] the history of this case”).  It is safe to assume that the parties collectively spent millions of dollars on legal fees and other litigation expenses.  And for what?  At the end of the day, after nine years of fighting, the court ruled that the plaintiffs lacked standing to sue – in layman’s terms, the Court found that it didn’t matter who was right because these plaintiffs weren’t the right people to bring the case in the first place.  So, after all that fighting, the plaintiffs succeeded at keeping the case going for nine years - no doubt touting their efforts in the media and to their supporters all along the way - before losing, and Feld Entertainment spent millions of dollars on lawyers in a case that likely couldn’t settle for any amount of money and, at the end of it all, can’t even claim victory on the merits.  Not the greatest win ever, is it?

Now, don’t get me wrong, I’m not suggesting that Feld Entertainment should not have fought this battle tooth and nail.  The use of elephants in their shows is integral to their productions and well worth fighting for.  The point though, is to illustrate the danger of fighting with a tenacious, sympathetic, and well-funded “cause.”  Getting involved in these fights can be easy; getting out of these fights can be very difficult.  So how do you avoid getting into these situations in the first place?  There are some things you can do:

  1. Where possible, build relationships with advocacy groups in your area or industry.    This shows the “cause” that you are considerate of its point of view, interested in working with it (if you can) and, assuming an accommodation is possible and reasonable, could be a great public relations win for both of you.
  2. Don’t underestimate or ignore a “cause.”  Many times, public interest groups will reach out privately before going public in an effort to obtain change while allowing their target to “save face” by keeping the incident quiet.  However, equally frequently, these groups are ignored or not taken seriously – causing the incident to expand exponentially.  If there’s one thing we can learn from the Feld Entertainment case, it is that these kinds of groups are passionate about their beliefs, have significant funding and legal and PR resources at their disposal, and are not afraid one iota about fighting with you.  Take them seriously.
  3. Prioritize and be prepared to compromise, even if it means “giving in” to hypersensitivity and political correctness.  You must, to use the cliché, pick your battles.  Ask yourself, “Is this policy or practice the “cause” is complaining about really that important to my operation?”  If the answer is no, be ready to give in rather than landing in an expensive and ugly public relations or legal battle.  However, and this is the key, if the answer to that question is yes, it probably is worth it to have the battle.  The idea, though, is to limit those fights to only the ones that really truly matter and to let the rest go.

Which brings me back to Cedar Point and Rye Playland.  In my opinion, both parks did exactly the right thing.  For Cedar Point, whether it uses the words “crazy” and “insane” on its Halloween attractions doesn’t really matter.  It can (and has) come up with equally effective and creative names that are entirely appropriate for the Halloween theme.  Cedar Point did not have to change the content or experience of its haunted house or show, nor was it apparently asked to do so.  In short, Cedar Point smartly realized that this was not a battle worth fighting.  Nothing about these attraction names implicated the fundamental business, mission, or identity of the park.  Much easier, and better, to simply change the names and move on with a successful Halloween promotion. 

Rye Playland, on the other hand, had to enforce its policy – even faced with a “cause” that instantly and persistently screamed about religious intolerance to anyone who would listen.  First, I think it's worth noting that apparently Rye Playland tried to work with the Muslim community ahead of time by informing Muslim officials of the ban on headwear before the event began, but this effort was regrettably unsuccessful.  More to the point, however, on an amusement park’s scale of priorities, none are higher than safety.  This was not an issue that was simply cosmetic or only tangentially related to the core business of the park.  This was an issue that implicated the highest priority our industry has – the safety of all our guests, whether they are Muslim, Buddhist, Christian, Atheist, or whatever.  Under those circumstances, Rye Playland did exactly the right thing in digging in its heels on the side of safety.  Might they get sued?  They might.  But that’s a fight that’s definitely worth having.

1 comment:

  1. IMO (again, for the cheap seats: I.M.O.), we as a society have become too progressively sensitive, passive and politically correct. While we continually "walk on eggshells" so as to not damage someone's sensibilities, no EXTRA effort or strides are being made to help those afflicted with real unfortunate problems of mental illness. The fight has become more aggressive of what to call these individuals and how to act around them, and less the actual testing and treatment of those who are ill.

    And to that end, I think as those progressively win at making a society who is passive, are also successfully making the definitions of the diseases of the affected; not only less offensive, but also less important. For example (and this isn't mine. Credit where it's due: George Carlin. He was funny, but also very correct at times. This isn't his actual bit, I'm paraphrasing), the mental illness that soldiers carry home with them. It used to be called Shell Shock. That term was scary in and of itself. It actually sounds like the racking of a shotgun: SHELLSHOCK. Sounded very serious and needing to be treated. So, over the years this disease has carried a few names, and today I believe it's called Post Traumatic Stress Disorder.

    To me that doesn't sound as need-to-treat as Shell Shock did. It actually sounds like a problem that the soldier had with trying to cope with the situation, rather than the situation having a real impact on the soldier's mental well-being.

    I don't know. Just ranting. Again. In my Opinion.

    And as far as the lady not wearing being able to wear a head wrap, give me a break. How is she going to celebrate her culture when she has been strangled or decapitated because of her head wrap? And Holy Cow, can you imagine? They would own that park if she died in that manner. So it's a lose-lose situation. But I agree with their decision. And I think the judge would ere on the side of safety rather than an act to deny religion and culture.

    ReplyDelete

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